Sr04 - Respondent Memorial

TEAM CODE: SR04
FOURTH PROF. N. R. MADHAVA MENON SAARCLAW

MOOTING COMPETITION SAARC ROUND (2018-19)
Before
THE INTERNATIONAL COURT OF JUSTICE
UNHCR................................................................................................ APPLICANT (1)

v.
REPUBLIC OF EDEN& OTHERS ......................................................... RESPONDENT
WITH
REPUBLIC OF ARDENIA .................................................................. APPLICANT (2)
v.
REPUBLIC OF EDEN ............................................................................ RESPONDENT
Upon Submission to the International Court of Justice
MEMORANDUM ON BEHALF OF THE RESPONDENT DRAWN AND

FILED BY THE AGENTS FOR THE RESPONDENT
FOURTH PROF. N.R. MADHAVA MENON SAARCLAW MOOTING COMPETITION
2019
TABLE OF CONTENTS
INDEX OF AUTHORITES……………………………………………………………………..3
CASES………………………………………………………………………………………….....3
STATUTES………………………………………………………………………………………..4
OTHER AUTHORITIES………………………………………………………………………….4
STATEMENT OF JURISDICTION…………………………………………………………....5
STATEMENT OF FACTS………………………………………………………………………9
SUMMARY OF ARGUMENTS……………………………………………………………….13
ARGUMENT ADVANCED……………………………………………………………………15
[1]. Applications filed by Republic of Ardenia and High Commissioner for Refugees are not
maintainable before the Hon’ble Court.………………………………………..…………...15
1.1 UNCHR and Republic of Ardenia have no locus before the Honorable
Court.……….................................................................................................................15
1.1.1Acts of UN High Commissioner for Refugees fall beyond its
mandate.…………...............................................................................................16
1.1.2. Republic of Eden cannot provide ‘diplomatic protection’ migrants…....……...16
1.2 Republic of Eden is not a signatory to the Convention on refugees and hence is not
bound to grant refuge to Ardenian citizens........................................................……...16
1.2.1. Principle of non-refoulement has not attained the status of jus cogens
norm...................................................................................................................17
1.2.2. Principle of non-refoulement has not attained the status of Customary
International Law..............................................................................................18
1.3 International Court of Justice does not have jurisdiction in the present case...........…...19
1.3.1. The issue is an internal dispute without any hint of International
dispute…………...............................................................................................19
1.4 Hon’ble Court does have the jurisdiction to deal with the issue of nationalization of
Ardenia Power Corp. Ltd........................................................................................…….20
MEMORIAL ON BEHALF OF RESPONDENT Page 1

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2. The order of deportation of Ardenian nationals is legal and in line with international
obligations of Republic of Eden........................................................................................22
2.1 The displaced Ardenian citizens are migrants and not refugee...................................22
2.2 Deported Ardenian citizens are ‘climate refugee’ and are not protected in the existent
refugee framework........................................................................................................23
2.2.1. Displaced Ardenian nationals are not fleeing ‘persecution’..............................24
2.3 Recognition of UNHCR is not per se binding on the state authorities...........................25
2.4 The responsibility of resettlement of Development Induced Refugee rests upon
Republic of Ardenia......................................................................................................26
3. The deportation of Ms. Irwin from Republic of Eden to Kingdom of NWF does not violates
her basic rights.........................................................................................................................28
3.1 No obligation whatsoever to admit Ms. Irwin as a refugee............................................28
3.2. Ms. Irwin not a refugee but an illegal immigrant..........................................................30
3.3 Threat to the security of nation.......................................................................................34
4. The nationalisation of Ardenia Power Corporation Ltd. violates rights of Republic of
Eden........................................................................................................................................37
4.1 Expropriation is per se illegal...........................................................................................37
4.2 No water crisis due to agreement.....................................................................................38
4.3 Sanctity of contract...........................................................................................................39
4.4 Annulment is void on the basis of equitable principle of justice.....................................40
4.5 Proportionality of obligation............................................................................................42
PRAYER FOR RELIEF SOUGHT………………………………………………...…….......44

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INDEX OF AUTHORITES
CASES
1. A.C. Mohd. Siddique v. Government of India 47 DRJ (DB) 74 (1998). ............................... 20

2. Aerial Incident of 10 March 1953 (United States of America v. Czechoslovakia) I.C.J. 6
(1956) ................................................................................................................................. 19
3. Amoco International Finance Corporation v. Islamic Republic of Iran, 27 I.L.M. 1314 (1988)
............................................................................................................................................ 37
4. Anglo Iranian Oil corporation case, United Kingdom v. Iran, I. C.J. Reports 93 (I952). ....... 40
5. Antarctica (United Kingdom v. Argentina) (United Kingdom v. Chile) I.C.J. 12 (1956) ...... 19
6. Banco Nacional de Cuba v. Chase Manhattan Bank, 658 F.2d 875. 888 2d (Cir. 1981). ....... 41
7. Certain German interests in Polish Upper Silesia, Germany v Poland, PCIJ Series A no 7 28
(1926) ................................................................................................................................. 28
8. Chan v MIEA, 169 CLR 379 (1989) .................................................................................... 33
9. Chorzow Factory Case, Germany vs. Poland, PCIJ Series A No. 17, 45 (1928) ................... 28
10. Customs Régime between Germany and Austria (Protocol of March 19th, 1931), Advisory
Opinion, PCIJ Series A/B No 41, ICGJ 287 48 (PCIJ 1931) ................................................ 28
11. De Sabla Claim (U.S. v. Pan.), 6 R. Int'l Arb. 336 (1933) .................................................... 43
12. Federal Republic of Germany v. Denmark and Netherlands, I.C.J. Reports 3 (1969)............ 16
13. INS vs Cardoza Fouseca, 46 USSC 407 (1987) ................................................................... 33
14. Joseph Adjei vs Ministry of Employment & Immigrati, 7:2d Imm.L.R 169 (1989) .............. 33
15. Kiribati,NXIPT 800413 (N.Z) (2013) .................................................................................. 24
16. Louis De Raedt & Ors. Vs. Union of India, 3 SCC 554 (1991) ............................................ 36
17. Malavika Karlekar v. Union of India and Another, Writ Petition (Cr. No) 583 of 1992, India:
Supreme Court, 25 September (1992) .................................................................................. 20
18. MIEA v Guo, 191 CLR 559 572 (1997)............................................................................... 33
19. MIEA v Wu Shan Liang, 185 CLR 259 263 (1996) ............................................................. 32
20. Norwegian Shipowners' Claims (U.S. v. Nor.), I RIAA 307 (1922) ..................................... 41
21. R vs Secretary of the Home Department Ex Parte Sivakumaran, 1 AII E.R.193 (H.L.:1988) 33
22. Revenko v. Secretary of State for the Home Department, E.W.C.A. Civ. 500 (U.K.: 2000). 24

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23. Sale vs. Haiti an Centers Council, 509 U.S. 155 (1993) ....................................................... 30
24. Starrett Housing corp. v iran, Iran-U.S.C.T.R. 3 I.L.M. 1090 122 (1984). ............................ 38
25. State of Arunachal Pradesh vs. Khudiram Chakma Supp. 1 SCC 615 (1995). ...................... 20
26. Texaco Overseas Petroleum Co. v. Libya, 17 I.L.M. 1 (1978).............................................. 40
27. The Barcelona Traction, Light & Power Co. (Belg. v. Spain), l.C.J. 3 (1970). ..................... 41
28. The Chorzow Factory Case (Ger. v. Pol.), P.C.I.J., series A., No. 13 (1928) ........................ 42
29. Tppetts v TAMS-ATTA, 6 Iran-U.S.C, T, R 219 215 (1985). .............................................. 37
STATUTES
1. Charter of Economic Rights and Duties of States, United Nations Resolution 3281(XXIX),
(1974) ................................................................................................................................. 42
2. Charter of Economic Rights and Duties of States, United Nations Resolution 3281(XXIX),
(1974). ................................................................................................................................ 42
3. Draft Article on the Law of Treaties with commentary ........................................................ 18
4. Draft Articles on Responsibility of States for Internationally Wrongful Acts ....................... 18
5. Statute of International Court of Justice ............................................................................... 20
6. Statute of the International Court of Justice ......................................................................... 16
7. Statute of the Office of the United Nations High Commissioner for Refugees ..................... 17
8. Statute Of The Office Of The United Nations High Commissioner For Refugees, UN General
Assembly ...................................................................................................................... 31, 32
9. The Foreigner’s Act, Section 14, (1946) .............................................................................. 34
OTHER AUTHORITIES
1. Advisory opinion by UNHCR on the interpretation of the refugee definition in exercise of its
supervisory function under Article 35 of the 1951 Convention ............................................ 24
2. After An Eviction: Immediate Relief And Relocation, Comprehensive human rights
guidelines on development-based displacement, page 11(E/CN.4/Sub.2/1997/7, annex) ...... 28
3. Alice Farmer, Non-refoulement and Jus Cogens: Limiting Anti-Terror Measures That
Threaten Refugee Protection, Vol.23:1, Georgetown Imm. L. J. 3 (2008). ........................... 19
4. Anne Lagerwall, Jus Cogens, Oxford: Oxford University Press ........................................... 18
5. Attorney General for the Dominion of Canada V Cain, AC 542 (pc: 1906) .......................... 33

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6. Chan v MIEA, 169 CLR 379 396 (1989) ............................................................................. 31

7. Committee on Economic, Social and Cultural Rights, general comment No. 7 (1997). ........ 28
8. David Harris, cases and material on international law, 470 (7 th edn, sweet and Maxwell,
south asian edition, 2011). ................................................................................................... 34
9. David Keane, The Environmental Causes and Consequences of Migration: A Search for the
Meaning of Environmental Refugees, 209 (Geo. Int'l Envtl. L. 2004) .................................. 25
10. David Keane, The Environmental Causes and Consequences of Migration: A Search for the
Meaning of Environmental Refugees, 16 Geo. Int'l Envtl. L. Rev. 209 (2004) ..................... 23
11. Draft Conclusions & Report of the Drafting Committee, Identification of Customary
International Law, 66th Session, International Law Commission (July 2015) ....................... 20
12. E. Feller, V. Trk and F. Nicholson (eds.), Refugee protection in international law: UNHCR’s
Global Consultations on International Protection, (Cambridge: Cambridge University Press,
2003) ................................................................................................................................... 30
13. E. Lauterpacht and D. Bethlehem, The scope and content of the principle of nonrefoulement:
opinion ................................................................................................................................ 30
14. ESSAM EL-HINNAWL, U.N. ENVTL. PROGRAM, ENVIRONMENTAL REFUGEES
(1985) ................................................................................................................................. 24
15. EXCOM Conclusion 18, Para. (h) ....................................................................................... 31
16. EXCOM Conclusion 40, Para. (l) ........................................................................................ 31
17. ForoItaliano [Foro It.] I 256, 22 I.L.R. 23 Sept. 13, 1954, Trib., Roma, 1955 ....................... 42
18. Frank Vanclay, Project-induced displacement and resettlement: from impoverishment risks to
an opportunity for development? Impact Assessment and Project Appraisal, 35:1, 3-21.
(2017). ................................................................................................................................ 27
19. GaimKibreab, Environmental Causes and Impact of Refugee Movements: A Critique of the
Current Debate, Disasters 20, 20-38 (1997) ......................................................................... 24
20. General Assembly Resolution 428(v), (14 December 1950)................................................. 31
21. General Comment No. 15: The Right to Water, UNHRC, para 5, (2003). ............................ 37
22. Gopal Krishna Siwakoti, Refugee Regime under SAARC: An Agenda For Action, Asia
Pacific Refugee Rights Network (April 2010)...................................................................... 19
23. Guy Goodwin-Gil, TheRefugee In International Law 19-20 (2d ed. 1996). .......................... 24

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24. H. Lambert, the Conceptualization of ‘Persecution’ by the House of Lords: Horvath v.

Secretary of State for the Home Department, 30 (1/2 International Journal of Refugee Law,
2001) ................................................................................................................................... 34
25. Handbook on Procedures and Criteria for Determining Refugee Status, UNHCR ................ 25
26. International Court of Justice, Dispute Settlement, United Nations Conference on Trade and
Development ....................................................................................................................... 17
27. Interpreting Article 1 of the 1951 Convention relating to the Status of Refugees, UNHCR,
April 2001, paragraph 11 ..................................................................................................... 24
28. J.C. Hathaway, The Law of Refugee Status, pp. 104-105 (Toronto, Butterworths, 1991) ..... 32
29. JoAnn McGregor, Refugees and the Environment, in Geography And Refugees: Patterns
And Processes Of Change159 (Richard Black & Vaughan Robinson eds., 1993) ................. 26
30. Lord McNair, The Law of Treaties, 309 (1961) ................................................................... 29
31. M. Fitzmaurice, Third Parties and Law of Treaties, Max Planck UNYB 6 (2002) ................ 19
32. MIEA v Wu Shan Liang, 185 CLR 259 263 (1996). ............................................................ 32
33. National law and practice regarding the weight given by states to UNHCR mandate
recognition’, Annex to UNHCR intervention in I. A. v. Secretary of State for the Home
Department, 6 UKSC (2014) ............................................................................................... 26
34. Office of the United Nations High Commissioner for Refugees (UNHCR), p. 19, (2011) .... 32
35. P. Corbett, The Consent of States and the Sources of the Law of Nations, 6 BRIT. Y.B. Intl.
L. 22, 25 (1925)................................................................................................................... 16
36. Paul Weis, Nationality and statelessness in international law, 46 (2 nd edn, Laura Van Waas
1979) ................................................................................................................................... 34
37. Procedural Standards for RSD under UNHCR’S Mandate. .................................................. 32
38. R. Sexton, Political refugees, non-refoulement and state practice: a comparative study, 731,
737-738 (Vanderbilt Journal of Transnational Law, 1985) ................................................... 30
39. R.Rox-bourgh , International Conventions and Third States, 453. (1917)............................. 29
40. S Basu, Practicing the ‘Guiding Principles’ for Development’s Displacees: Problems and
Prospects,Ref. Watch. – Sou.A. Jr.F. Mig., 37 (June 2011 ................................................... 27
41. S. Basu, Practicing the ‘Guiding Principles’ for Development’s Displacees: Problems and
Prospects,Ref. Watch. – Sou.A. Jr.F. Mig., 37 (June 2011). ................................................. 27

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42. San Jose Declaration on Refugees and Displaced Persons under the Auspices of the Costa
Rican Government, International Colloquium in Commemoration of the Tenth Anniversary
of the Cartagena Declaration on Refugees, Dec. 5-7, (1994). ............................................... 26
43. Scope of the Convention, SAARC convention on NDPS, (1961) ......................................... 36
44. Shaw, N. Malcolm, International Law, (4th edition, Cambridge University Press, 1997). ..... 30
45. Shaw, N. Malcolm, International Law, Cambridge University Press, 4th edition, (1997) ...... 29
46. Symposium, Environmentally-Induced Population Displacements and Environmental
Impacts Resulting ................................................................................................................ 23
47. The concept of ‘Climate Refugee’: Towards a possible definition, European Parliament
Research Service (ERPS) (May, 2018). ............................................................................... 23
48. The Foreigners Act, (1946).................................................................................................. 35
49. Treatment in Hungary of Aircraft and Crew of the United States of America (United States of
America v. Hungary), I.C.J. 99 (1954) ................................................................................. 20
50. U.N. Office for the Coordination of Humanitarian Affairs, Guiding Principles on Internal
Displacement,1, U.N. Doc. E/CN.4/1998/53/Add.2 (1998). ................................................. 23
51. UN declaration for refugees and migrants adopted, (19th Sept 2016) .................................... 37
52. UN High Commissioner for Refugees (UNHCR), Guiding Principles on Internal
Displacement (1998), ADM 1.1,PRL 12.1, PR00/98/109. .................................................... 27
53. United Nations. 2014b. Forced evictions. Fact Sheet No. 25. Rev 1. New York and Geneva:
Office of the United Nations High Commissioner for Human Rights. UN Habitat; [ July
2016] ................................................................................................................................... 28
54. Vattel, Law of Nations, book 1, s.231 .................................................................................. 34
55. Vienna Convention on Law of Treaties................................................................................ 29

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STATEMENT OF JURISDICTION
Republic of Eden submits the present dispute against Republic of Ardenia to the jurisdiction of
the Hon’ble Court conferred upon it under Article 36 of the Statute of International Court of
Justice. The relevant article runs as follows-
“Article 36- 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.
2. The states parties to the present Statute may at any time declare that they recognize as
compulsory ipso facto and without special agreement, in relation to any other state accepting the
same obligation, the jurisdiction of the Court in all legal disputes concerning:
a. the interpretation of a treaty;

b. any question of international law;
c. the existence of any fact which, if established, would constitute a breach of an
international obligation;
d. the nature or extent of the reparation to be made for the breach of an international
obligation.
3. The declarations referred to above may be made unconditionally or on condition of

reciprocity on the part of several or certain states, or for a certain time.
4. Such declarations shall be deposited with the Secretary-General of the United Nations, who
shall transmit copies thereof to the parties to the Statute and to the Registrar of the Court.
5. Declarations made under Article 36 of the Statute of the Permanent Court of International
Justice and which are still in force shall be deemed, as between the parties to the present Statute,
to be acceptances of the compulsory jurisdiction of the International Court of Justice for the
period which they still have to run and in accordance with their terms.
6. In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by
the decision of the Court.”

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STATEMENT OF FACTS
(Part-1)
1. Republic of Eden is a South Asian country with the Republic of Ardenia on its North-eastern
side and the Kingdom of NWF on its western side.
2. In year 2002, the Republic of Eden entered into a development project agreement with the
Republic of Ardenia i.e. 'Development of Mega Hydro- Electricity Project - 2012' on river
'Tuvalu' which flows 200 km in Republic of Ardenia and and around 1800 k.m. in Republic
of Eden. The entire Mega dam project was to be developed and financed by one of the Govt.
companies of Republic of Eden, i.e., Mega Hydro Electricity Project Corporation Ltd.
(hereinafter; MHEPC Ltd.).
3. The project caused the displacement of a large number of people. As the project was located
on the border of two states, the Govt. of Eden was liberal in handling the migrant citizens of
Ardenia in its territory and also assisted in rehabilitation by running a special program and
granted 10 years long stay visa irrespective of verifying the nationality of citizens. Nearly
10000 people from Ardenia have been rehabilitate dunder this Special Program.
(Part-2)
1. Mrs. Irwin along with her two children came to Eden due to Mega Structure Dam but had no
document of citizenship.
2. In beginning of 2018, the government of Eden prepared a national register of all foreigners in
Eden after 2000 and started the deportation of Mrs. Irwin to Ardenia but Ardenia refused to
take her back.
3. Ms. Irwin in her deposition before the competent authorities of Eden stated that she is a
national from Kingdom of NWF. She was forced to leave her country of origin/nationality in
very peculiar circumstances in year 1997 itself. From Kingdom of NWF, she managed
herself to enter in Republic of Ardenia and escaped the authorities along with her children
before getting further displaced in year 2002-03due to construction of mega structure –dam.
She further revealed that the UNCHR authorities have recorded her country of nationality as
Kingdom of NWF.

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4. Subsequently, The High Commissioner of UNCHR made a passionate appeal to the Republic
of Eden not to deport Ms. Irwin and her two children back to Kingdom of NWF or Republic
of Ardenia in the peculiar facts.
5. The Republic of Eden vide its executive decision has taken all the measures to deport and
relocate all the displaced/ refugee including Ms. Irwin from Republic of Ardenia; who
entered the territory due to displacement caused in year 2002-03.Notwithstanding a
constitutional guarantee of equality and against discrimination on ground of sex – a woman's
place in society in Republic of Ardenia is low.
(Part-3)
1. Climate change is much spoken and debated phenomenon but The Refugee protection regime
under the International Law is very narrow and misses the new set of refugee 'Climate
Change Refugee' in its entirety.
2. In year 2007, Calling for a “long-term global response” to deal with climate change, along
with unified efforts involving the Security Council, Member States and other international
bodies, Secretary-General of UN said that projected climate changes could not only have
serious environmental, social and economic implications, but implications for peace and
security as well.
3. The Republic of Ardenia; which was a non-permanent member of UNSC in year2013,
emphasised and made a passionate statement through its Foreign Minister for the intervention
of UNSC in relation to the Climate Change and asked for a 15-member body to keep the
issue of climate change under continuous review.
(Part-4)
1. Oxenberg is a prominent city in Republic of Ardenia which faced one of its worst water crisis
in 2017. The experts speculated the climate change and the change in ecosystem caused due
to implementation of Mega Hydro-Electricity Project.
2. Subsequently, the government of Ardenia nationalized the Ardenia Power Corporation Ltd.
By bringing an ordinance and took over the control of management of Mega Hydro-
Electricity Project in national interest.

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3. While the Constitution of Eden guarantees a Fundamental right to life and liberty and the
inviolability of human dignity and basic rights has been its governing principles, the
Republic of Eden itself is a developing economy, facing problems like illiteracy, poverty,
child labour, gender inequality, and unemployment.
4. The Republic of Ardenia has requested the Govt. of Republic of Eden to grant refugee status
and protect the basic rights and dignity of the 'climate refugees' who have fled to the
Republic of Eden who fled and crossed into the territory of Eden due to construction/
building of Mega Structure dam and continue giving support like before. It also cited the lack
of resources, impending water crisis in one of its largest city of Oxenberg and also reminded
of its liability/ responsibility towards humanity in backdrop of climate change.
5. The government of Eden held itself not responsible for the life, liberty and security of the
‘illegal refugees’ and also communicated to Kingdom of NWF in connection to Ms. Irwin
and her family.
6. Subsequently, negotiation started between the Republic of Eden and the Republic of Ardenia
but failed.
7. Upon this development, the UNCHR approached the ICJ as an specialised agency of UN
specially highlighting the plights of refugee like Ms. Irwin and against the deportation
process of Republic of Eden and supports the stand taken by Republic of Ardenia against the
Eden with regard to the deportation of around 10000 migrants who moved to the territory of
Eden due to displacement caused by Mega Structure Dam. UNCHR has also made party to
Kingdom of NWF along with Republic of Eden and Republic of Ardenia.
8. The Republic of Ardenia has also approached the International Court of Justice under Article
36 suing Republic of Eden as it failed to protect the basic dignity and liberties of victims who
were 'Climate Refugees', not sharing the environmental assessment report, its impact on the
human life and threats of water crisis to cities like Oxenberg under the unprecedented
circumstances and global changes brought due to the Climatic and other environment
degrading conditions.

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(Part-5)
1. The International Court of Justice in the exercise of its extra-ordinary power, considering the
similarity of legal issues pending before it as brought by Republic of Ardenia vs. Republic of
Eden clubbed the issue raised by UNCHR against the Republic of Eden.
2. The Republic of Eden not only opposes the jurisdiction of ICJ to adjudicate upon the status
and protection of 'Displaced People' from Ardenia vis-à-vis its obligation under International
Law towards illegal migrants. It also opposes that these displaced people are not 'Climate
Refugee' as well as the disputes relating to nationalisation of Ardenia Power Corporation Ltd.
and supply of Water for its domestic need could be re-negotiated and the dispute settlement
mechanism contemplated under Mega Hydro-Electricity Development Agreement.
3. The two disputes namely Between Republic of Ardenia vs. Republic of Eden and UNCHR
vs. Republic of Eden& Ors. have been scheduled for hearing before the ICJ on 13 -14
February 2018.

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SUMMARY OF ARGUMENTS
1. Applications filed by Republic of Ardenia and High Commissioner for Refugees are not
maintainable before the Hon’ble Court.
The applications filed before the Hon’ble Court are not maintainable as firstly, United
Nations High Commissioner of Refugee does not have locus in the present case because only
states are entitled to appear before the Court. Secondly, Republic of Eden is not a signatory to
Convention Relating to the Status of Refugees, 1951. Furthermore, principle of non-
refoulement has not attained the status of principle of Customary International Law. Thirdly,
Hon’ble Court does not have jurisdiction over the claim as the basis of Court’s jurisdiction is
consent of the parties. Moreover the matter is fit to be decided by national courts of Eden as
the interest of deported people cannot be represented adequately before International Court of
Justice.
Furthermore, the application filed by Republic of Eden on issue of nationalization of Ardenia

Power Corporation Ltd. is maintainable as the court has jurisdiction under Article 64 of
Convention on the settlement on Investment Disputes.
2. ‘Order of Deportation’ by Republic of Eden does not breach international norms and
obligations of Eden.
The order of deportation by republic of Eden is valid and in line with Eden’s international
obligations as firstly, displaced nationals of Ardenia are economic migrants and/ or
‘environmentally displaced people,’ not refugees fleeing persecution. Secondly,
contemporarily climate refugees are not included within the international refugee framework
because they do not satisfy the criteria laid down in Refugee Convention. Thirdly,
recognition as refugee by UN High Commissioner of Refugee is not per se binding upon the
national authorities. Fourthly, the prime responsibility of Development Induced Refugees
and their Resettlement (DIDR) rests primarily with the national government, i.e. Republic of
Ardenia.

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3. Deportation of Miss Irwin to Kingdom of NWF is not in violation of her basic rights
and liberties.
The lawful exercise of sovereign rights of deportation of Miss Irwin does not violate her
basic rights and liberties since there is no obligation to admit Miss Irwin as refugee as it is
not a party to refugee convention. Secondly, Miss Irwin is not a refugee but an illegal migrant
enjoying no protection under International law from deportation to country of origin. Thirdly,
Miss Irwin is a threat to the security of Republic of Eden as there have been past instance of
criminal act under Narcotic Drugs and Psychotropic Substances Act involving her family.
4. Expropriation of Ardenia Power Corporation Ltd. by Republic of Ardenia is in gross

breach of agreement and international obligations.
Expropriation of Ardenia Power Corporation Ltd. by Ardenian government is illegal and

breach of agreement as firstly, nationalization involves liability of consequential loss and
breach of fundamental right to property of Eden. Secondly, The water crisis in city of
Oxenberg was not due to the Hydro Power project and the water crisis was just an excuse for
the per se illegal act. Thirdly, Acts of Ardenia violates the sanctity of contract which is
guaranteed propriety rights to foreigners. Fourthly, the act of expropriation even falls foul on
the count of ‘equitable principle of justice.’ Fifthly, nationalization constitutes
disproportionate burden over the republic of Eden in respect of its obligations.

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ARGUMENT ADVANCED
1. Applications filed by Republic of Ardenia and High Commissioner for Refugees are not
maintainable before the Hon’ble Court.
1. The Applications filed against the ‘order of deportation’ passed by Republic of Eden are not
maintainable since firstly, UN High Commissioner for Refugees and Republic of Ardenia do
not have requisite locus standi before the Hon’ble Court. Secondly, Republic of Eden is not a
signatory to the Refugee Convention of 1951 and is not bound by the principle of non-
refoulement. Thirdly, Hon’ble Court does not have requisite jurisdiction to adjudicate the
issues at hand. Fourthly, Hon’ble Court does have the jurisdiction over issue of
nationalization under Article 64 of convention on the settlement of investment disputes.
1.1. UNHCR and Republic of Ardenia have no locus before the Honorable Court.
2. It is humbly submitted before the Hon’ble court that the first petition filed by UN Refugee
Agency (UNCHR) against the Republic of Eden is not maintainable as UNCHR has no locus
before International Court of Justice. It has been explicitly outlined in the governing statute
of International Court of Justice that only states may be parties in cases before the court. 1
Article 34 while outlining the competence of the court mandates that in contentious cases
only state may be parties in cases before the court.2 Moreover, by espousing the claim of
Republic of Ardenia before the International Court of Justice, UNCHR is acting outside the
ambit of its functions outlined by the Statute of the Office of the United Nations High
Commissioner for Refugees. UNCHR’s competence is limited nine functions provided in the
statute which include promoting treaties, special agreements, admission of refugees, assisting
and keeping in close touch with governments, and establishing co-ordination of efforts for
welfare of refugees. 3 Furthermore, UNCHR can only engage in additional activities which
are so determined by General Assembly.
1
Statute of the International Court of Justice, Article 35 (1945).
2
Statute of International Court of Justice, Article 34(1) (1945).
3
Statute of the Office of the United Nations High Commissioner for Refugees, Rule 8, Annex 1, General Assembly
Resolution 428(v) of 14 December 1950.

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1.1.1. Acts of UN High Commissioner for Refugees fall beyond its mandate.
3. The work of High Commissioner of entirely of non-political character4 and hence, the
endorsement of the stance of Ardeina in open court puts a question mark on the integrity and
credibility of the office of UNCHR. Also, in the present case there has been a blatant
violation of the procedure prescribed, if in case difficulty arises, in exercise of UNCHR’s
functions (e.g. controversy concerning the international status of persons). In such case the
High Commissioner is bound to request the opinion of advisory committee on refugees
created by Economic and Social Council5 but the procedure was not followed and instead the
Hon’ble court was approached. It is also a contention of the respondent state that albeit
Hon’ble court has jurisdiction to give advisory opinions at the request of bodies which are
expressly authorized in this regard. It is submitted that five organs, and sixteen related
organizations have been authorized by General Assembly and UNCHR is not authorized
taking away any right whatsoever to be party before International Court of Justice.
1.1.2. Republic of Eden cannot provide ‘diplomatic protection’ migrants.
4. It is furthermore submitted by Republic of Eden that though states are entitled to sponsor the
claim of their nationals against other states before ICJ as ‘diplomatic protection’ but such
protection can only be exercised by the state of nationality only after the person(s) concerned
have exhausted local/ judicial remedy available in the state in which the person has suffered
legal injury6 but in the present case no such remedy was availed before national courts by
‘soon to be deported immigrants’ and hence, Republic of Ardenia has no locus before the
Hon’ble court.
1.2. Republic of Eden is not a signatory to the Convention on refugees and hence is not
bound to grant refuge to Ardenian citizens.
5. It is submitted before the Hon’ble court that the republic of Eden is not bound to grant refuge
as Republic of Eden is neither a signatory to, nor has ratified the UN Convention on
Refugees 1951 or the Protocol of 1967 to the Convention so as to bind itself to the principle
4
Statute of the Office of the United Nations High Commissioner for Refugees, Ch. 1, Rule 2.
5
Statute of the Office of the United Nations High Commissioner for Refugees, Rule 1 ¶ 2 & Rule 4.
6
International Court of Justice, Dispute Settlement, United Nations Conference on Trade and Development, p.11.

2019
of non-refoulement.7 In the present scenario Republic of Eden is third state8 and a treaty
cannot create either rights or obligations for a third state without its consent. 9 Treaties
considered as agreement are acts of consent and hence they obligate their signatories.10 The
rule is one of the bulwark of the independence and equality of state. 11 An obligation for a
third state arises from a provision of a treaty if firstly, the parties to the treaty intend the
provision to be he means of establishing obligation and secondly, the third state expressly
accepts the obligation in writing.12 Thus, in case of an obligation arising from a treaty, three
conditions must be fulfilled: the assent of third state; the express recognition by a state of its
obligations; the written form of assent.13 It is most respectfully submitted that none of the
requirement whatsoever is fulfilled in the present matter on part of the respondent state.
1.2.1. Principle of non-refoulement has not attained the status of jus cogens norm.
6. It is a contention of respondent state that principle of non refoulement has not attained the
status of a peremptory norm i.e. Jus Cogens so as to compel a third state to oblige to it. Jus
Cogens are certain fundamental, overriding principles of international law accepted and
recognized by the international community of states as a whole from which no derogation is
permitted.14 Moreover, if states or international organizations are to violate jus cogens, they
cannot invoke any circumstance precluding the wrongfulness of their conduct, such as
necessity or force majeure.15 Whereas, in case of non-refoulement derogation is permissible
and is authorized by the UN Convention on Refugees on the grounds of national security and
public order.16 Nations across the globe have relied heavily on these exceptions in enacting
anti-terrorism measures17 clearly denying the principle the status of peremptory norm.
Moreover, Article 33(2) itself bridles the principle of non-refoulement laid down in Article
7
¶ 52, Page 11, MOOT PROPOSITION, 4th Prof. N.R. MadhavaMenon SAARCLAW Mooting Competition,
SAARC Round 2019.
8
Vienna Convention on the Laws of Treaties, Article 2(h), (1969).
9
Vienna Convention on the Laws of Treaties, General Rules regarding third States, Article 34 (1969).
10
P. Corbett, The Consent of States and the Sources of the Law of Nations, 6 BRIT. Y.B. Intl. L. 22, 25 (1925).
11
Draft article on the Law of Treaties with commentary, Article 30, Yearbook of the ILC, 1966, vol. II. 227.
12
Vienna Convention on the Law of Treaties, Article 35 (1969).
13
M. Fitzmaurice, Third Parties and Law of Treaties, Max Planck UNYB 6 (2002) p.46.
14
Anne Lagerwall, Jus Cogens, Oxford: Oxford University Press (2015).
15
Draft Articles on Responsibility of States for Internationally Wrongful Acts, Article 26 (2001).
16
UN Convention Relating to the Status of Refugees, Article 32 (1) (1951).
17
Alice Farmer, Non-refoulement and Jus Cogens: Limiting Anti-Terror Measures That Threaten Refugee
Protection, Vol.23:1, Georgetown Imm. L. J. 3 (2008).

2019
33(1) denying the benefit to the persons who are regarded as danger to the security of the
country on reasonable grounds. 18
1.2.2. Principle of non-refoulement has not attained the status of Customary

International Law.
7. Furthermore, it is an argument of the respondent state that the principle of ‘non-refoulement’

embodied in UN Convention relating to the status of Refugees 1951 and related Protocol of
1967 has even not attained the status of ‘Customary International Law’ so as to bind
Republic of Eden i.e. a third state to it. In the landmark case of North Sea Continental Shelf
19
Hon’ble court suggested four requirements that had to be satisfied before any norm laid in
any treaty is said have attained the status of ‘international custom’. The court opined that
firstly, there must be very widespread and representative participation in the convention.
Secondly, those states must be included in the treaty whose interest is specifically interested.
Thirdly, with regard to the principle in question, states practice should be extensive and
uniform. Fourthly, there should be no option of reservation to the provisions by the parties. 20
It is submitted before the Hon’ble court that in the case at the hand none of the requirement
outlined by the Hon’ble court as pre-requisite has been fulfilled as none of the SAARC
country is is party to the treaty or its protocol (except the newly joined Member
Afghanistan).21 Furthermore, the principle has been denounced frequently by states. It is
submitted that it is an established fact that at any rate for a provision to be recognized as part
and parcel of international customary law it must be of a fundamentally norm creating
character (opiniojuris) such as could be regarded as forming the basis of a general rule of
law. 22
18
Prohibition of Expulsion or return, UN Convention Relating to the Status of Refugees, Article 33 (1951).
19
Federal Republic of Germany v. Denmark and Netherlands, I.C.J. Reports 3 (1969).
20
Id. at 42.
21
Gopal Krishna Siwakoti, Refugee Regime under SAARC: An Agenda For Action, Asia Pacific Refugee Rights
Network (April 2010).
22
Draft Conclusions & Report of the Drafting Committee, Identification of Customary International Law, 66th
Session, International Law Commission (July 2015).

2019
1.3 International Court of Justice does not have jurisdiction in the present case.
8. It is submitted that the jurisdiction of the International Court in contentious proceeding is

based on the consent of the parties and it has been categorically held that the court could not
allow an application where the opposing party did not accept jurisdiction. 23 The jurisdiction
of the court comprises of the cases where either the case has been referred to it by the parties
or matters provided in treaty or convention. 24 The respondent state has neither referred the
dispute to the Hon’ble Court nor a party to UN Convention on Refugees tacitly submitting to
the jurisdiction of the court.
9. The jurisdiction provided to the Hon’ble court under the UN Convention Relating to the
Status of Refugees for the settlement of dispute is with regard to any dispute ‘between parties
to the convention’ with regard to interpretation or application of dispute. 25 It is in such cases
that on a unilateral application of any of the party the court can decide the dispute but in the
case at hand as Republic of Eden is not a party to the convention, it would require express
consent of the respondent state to derive jurisdiction.
1.3.1 The issue is an internal dispute without any hint of International dispute.
10. Moreover, the present matter is an internal dispute related to the national security and public
order of Republic of Eden and Republic of Ardenia has no element whatsoever so as to give
the dispute International texture. It a humble contention of the respondent state the matter
falls within the exclusive jurisdiction of National Courts of Eden. The dispute can be very
ably handled by the national courts in case ‘to be deported’ immigrants have any grievance
feeling of injustice they can approach the courts first-hand. In a plethora of cases decided by
the courts have stayed deportation of refugees. In A.C. Mohd. Siddique v. Government of
India26 the High Court of Madras expressed its unwillingness to let any Sri Lankan refugees
to be forced to return to Sri Lanka against their will.
23
Treatment in Hungary of Aircraft and Crew of the United States of America (United States of
America v. Hungary), I.C.J. 99 (1954); Aerial Incident of 10 March 1953 (United States of
America v. Czechoslovakia) I.C.J. 6 (1956); Antarctica (United Kingdom v. Argentina) (United
Kingdom v. Chile) I.C.J. 12 (1956); Aerial Incident of 7 October 1952 (United States of America v. USSR) I.C.J.
276 (1959).
24
Statute of International Court of Justice, Article 36, ¶ 1 (1945).
25
Settlement of Disputes, United Nations Convention on the status of Refugees, Article 38 (1951).
26
A.C. Mohd. Siddique v. Government of India 47 DRJ (DB) 74 (1998).

2019
11. In the matter of Malavika Karlekar vs. Union of India27 the Supreme Court directed stay of
deportation of the Andaman Island Burmese refugees, since their claim for refugee status was
pending determination and a prima facie case is made out for grant of refugee status. The
Supreme Court judgment in State of Arunachal Pradesh vs. Khudiram Chakma28 clearly
declared that no one shall be deprived of his or her life or liberty without the due process of
law. Furthermore, it is humbly submitted before the Hon’ble court that Republic of Eden
being a sovereign nation, the court cannot sit in appeal over the decision of deportation of the
respondent state.
1.4 Hon’ble Court does have the jurisdiction to deal with the issue of nationalization of
Ardenia Power Corp. Ltd.
12. It is a submission of the respondent state that the Hon’ble court does have the jurisdiction to
adjudicate upon the issue of nationalization of the corporation, it being a gross violation of its
international obligation. Court has jurisdiction under Article 64 with regard to ‘interpretation
and application’ of Convention on the Settlement of Investment Disputes.29 Republic of
Ardenia acted in gross breach of its obligations under the Mega Hydro-Electricity
Development Agreement and Dispute Settlement Clause thereunder. 30 It is submitted that the
investor (respondent state) intended to submit the dispute regarding the ‘right to control
water level’ during the Oxenberg water crisis in 2017 to International Centre for the
Settlement of Investment Dispute (ICSID) as was contemplated under the agreement.31 It is
submitted by the respondent state that Republic of Ardeina did not let the intermediary period
of six month to lapse, after the passing of which only was the investor competent to submit
the dispute to arbitration.32 Respondent state submits that the Convention would have applied
and hence, the Court has jurisdiction. This act of ‘unlawful expropriation’ has placed the
investor and the corporation into a position of impotence. State of nationality of shareholder
27
MalavikaKarlekar v. Union of India and Another, Writ Petition (Cr. No) 583 of 1992, India: Supreme Court, 25
September (1992).
28
State of Arunachal Pradesh vs. KhudiramChakma Supp. 1 SCC 615 (1995).
29
Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, Article 64
(1966).
30
SAARC Round 2019.
31
Development of Mega Hydro-Electricity Project -2002, Dispute Settlement Clause, Rule 8 (c).
32
Development of Mega Hydro-Electricity Project -2002, Dispute Settlement Clause, Rule 8.

2019
can have equitable bases to assert diplomatic protection, so long as they could prove the
corporation was reduced to such position of incompetence, to the point that it could not have
approached the national state for diplomatic protection. 33
33
Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 50,100 (1970).

2019
2. The order of deportation of Ardenian nationals is legal and in line with international
obligations of Republic of Eden.
1. Applications filed against the ‘order of deportation’ passed by Republic of Eden are not
maintainable since firstly, the displaced Ardenian nationals are not refugees but migrant.
Secondly, climate refugees are not protected under the contemporary international refugee
framework. Thirdly, Recognition by UN High Commissioner for Refugee, as refugee, is not
per se binding on national authorities. Fourthly, Resettlement of Development Induced
Displacement (DIDR) is the responsibility of Republic of Ardenia.
2.1 The displaced Ardenian citizens are migrants and not refugee.
2. It is most respectfully submitted before the Hon’ble court that the Ardenian nationals are
economic migrants and not refugees. International Convention on the Protection of the
Rights of All Migrant Workers and Members of their Family defines migrant worker as a
person who is to be engaged, is engaged or has been engaged in a remunerative activity in a
state of which he or she is not a national. 34It is submitted that most of the displaced people
who migrated were engaged in construction related activities on daily wages in Mega- Hydro
Electricity project.35 If they would have faced involuntary displacement and would have
opposed the project, they would not be working for the construction of the same.
Furthermore, they were granted 10 years long visa for the same pointing that the stay was
rather temporary and had economical element.36
3. The United Nations High Commissioner for Refugees (UNHCR), the International
Organization for Migration (IOM) and the Refugee Policy Group, have all opted not to use
the term "environmental refugee" and instead to use the term "environmentally displaced
persons."37Environmentally displaced persons are defined as "persons who are displaced
within their own country of habitual residence or who have crossed an international border
and for whom environmental degradation, deterioration or destruction is a major cause of
34
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families,
Article 2(1) (1990).
35
SAARC Round 2019.
36
SAARC Round 2019.
37
Symposium, Environmentally-Induced Population Displacements and Environmental Impacts Resulting
From Mass Migrations, Int'l Org. for Migration &Refugee Policy Center (1996).

2019
their displacement, although not necessarily the sole one.38 It is submitted that both the
countries share a porous border which is not even fenced. 39 The movement of the displaced
people was one of convenience and for better life prospects and not because of any fear of
persecution.
4. Displaced persons are persons or groups of persons who have been forced or obliged to flee
or to leave their homes or places of habitual residence, in particular as a result of or in order
to avoid the effects of armed conflict, situations of generalized violence, violations of human
rights or natural or human-made disasters, and who have not crossed an internationally
recognized state border.40
5. Relevant UN agencies and the IOM considered that the use of the term 'refugee' would be
inappropriate in that context, and that it would not be opportune or feasible to widen the
definition of refugees provided in the 1951 Refugee Convention to include additional
categories of persons.41Therefore, the term ‘environmental refugees’ is a misnomer, as
environmentally displaced persons are not recognized as refugees. 42
2.2 Deported Ardenian citizens are ‘climate refugee’ and are not protected in the existent
refugee framework.
6. There are four principal elements to the definition of a refugee contained in the Refugee
Convention. 43 They must be outside their country of origin; they must be unwilling or unable
to avail themselves of the protection of their country or return there; such inability or
unwillingness must be attributable to a well-founded fear of being persecuted; and the
persecution feared must be based on reasons of race, religion, nationality, membership of a
particular social group, or political opinion. According to El- Hinnawi, the one credited for
coining the term ‘environmental refugees’ accepted that the definition does not include those
people who have been forced to leave their traditional habitat, temporarily or permanently,
38
Ibid.
39
SAARC Round 2019.
40
U.N. Office for the Coordination of Humanitarian Affairs, Guiding Principles on Internal Displacement,1, U.N.
Doc. E/CN.4/1998/53/Add.2 (1998).
41
The concept of ‘Climate Refugee’: Towards a possible definition, European Parliament Research Service (ERPS)
(May, 2018).
42
David Keane, The Environmental Causes and Consequences of Migration: A Search for the Meaning of
Environmental Refugees, 16 Geo. Int'l Envtl. L. Rev. 209 (2004).
43
GUY GOODWIN-GIL, TheRefugeeInInternational Law 19-20 (2d ed. 1996).

2019
because of a marked environmental disruption (natural and/or triggered by people) that

jeopardized their existence and/or seriously affected the quality of their life. 44
2.2.1. Displaced Ardenian nationals are not fleeing ‘persecution’.
7. The phrase “well-founded fear of being persecuted” is the key phrase of the refugee
definition. While fear is a subjective emotion, for the purpose of refugee status
determination, it must be well-founded, that is, it must have an objective basis. 45 The
objective element is to be assessed on the basis of the situation prevailing in his/her country
of origin. 46 Handbook on Procedures and Criteria for Determining Refugee Status47 notes the
general understanding that ‘Persecution’ in any case comprises of serious human rights
violation. Furthermore, it consists of persistently discriminatory acts on part of the state of
origin. 48 It is submitted that in the case at hand there is no lack persecution but rather Ardenia
is actively arguing for their cause before the Hon’ble Court.
8. In Revenko v. Secretary of State for the Home Department 49 the protagonist was a stateless
person but there was no objective fear of persecution. The question was whether this alone
sufficed to render him eligible for refugee status, despite his lack of any well-founded fear of
persecution. It was categorically ruled by the court that for refugee status, well founded fear
of persecution is sine qua non.
9. Similar problem was posed before Immigration and Protection Tribunal, New Zealand in
which the appellant, a native of Kiribati, asked for asylum from sea level rise associated with
climate change, which threatens his livelihood and well-being on Kiribati, a low lying island
state at extreme risk from climate change.50Tribunal while rejecting the refugee claim
observed that Those who continue to contribute to global warming may be accused of having
an indifference to the plight of those affected by it once the consequences of their actions are
known, but this does not overcome the problem that there exists no evidence that any harms
44
4 ESSAM EL-HINNAWL, U.N. ENVTL. PROGRAM, ENVIRONMENTAL REFUGEES (1985); 21
GaimKibreab, Environmental Causes and Impact of Refugee Movements: A Critique of the Current Debate,
DISASTERS 20, 20-38 (1997).
45
Interpreting Article 1 of the 1951 Convention relating to the Status of Refugees, UNHCR, April 2001, paragraph
11.
46
Advisory opinion by UNHCR on the interpretation of the refugee definition in exercise of its supervisory function
under Article 35 of the 1951 Convention.
47
Handbook on Procedures and Criteria for Determining Refugee Status, UNHCR, 1979, paragraph 37.
48
INS vs Cardoza Fouseca, 46 USSC 407 (1987).
49
Revenko v. Secretary of State for the Home Department, E.W.C.A. Civ. 500 (U.K.: 2000).
50
Kiribati,NXIPT 800413 (N.Z) (2013).

2019
which flow are motivated by one or more of the Convention grounds of either race, religion,
nationality, membership of any particular social group or opinion.
10. Furthermore, it is submitted that ‘environmental refugees’ are also not covered under the
expanded definitions of refugee under Organization of African Unity Refugee Charter or
Cartagena Declaration, and neither of provided protection for environment refugees. 51 The
Declaration was intended as a key instrument in the search for durable solutions to the
problems faced by thousands of Central Americans forced to leave their homes as a
consequence of generalized violence that resulted from the serious conflicts in the region
during the 1980s.52It is submitted that environmental change, as a cause of migration, cannot
be meaningfully separated from political, economic and social changes. 53
2.3 Recognition of UNHCR is not per se binding on the state authorities.

11. It is humbly submitted before the Hon’ble court that the refugee recognition by UNHRC is
not per se binding on the state authorities. The fact of recognition by UNHCR as refugee
generally can be seen to carry considerable weight.54 In Germany there is no legal obligation
to national law to grant refugee status to asylum seekers recognized by UNHCR under its
mandate or to take mandate refugee status into account in the German asylum procedure and
the UNHCR status is not binding.55 In case of Greece, All third country nationals, including
UNHCR mandate refugees, have to go through the State procedure for the recognition of
refugee status or the granting of subsidiary protection status.56 In Malta there have been cases
where asylum applicants granted mandate refugee status in other African countries had their
application rejected in Malta.57 Hence, the final decision rests with the national government
and UNHCR refugee certificate is not conclusive as to the refugee status of any applicant.
51
16 David Keane, The Environmental Causes and Consequences of Migration: A Search for the Meaning of
Environmental Refugees, 209 (Geo. Int'l Envtl. L. 2004).
52
San Jose Declaration on Refugees and Displaced Persons under the Auspices of the Costa Rican Government,
International Colloquium in Commemoration of the Tenth Anniversary of the Cartagena Declaration on Refugees,
Dec. 5-7, (1994).
53
JoAnn McGregor, Refugees and the Environment, in Geography And Refugees: Patterns And Processes Of
Change159 (Richard Black & Vaughan Robinson eds., 1993) .
54
‘National law and practice regarding the weight given by states to UNHCR mandate recognition’, Annex to
UNHCR intervention in I. A. v. Secretary of State for the Home Department, 6 UKSC (2014).
55
Id.
56
Supra note 21.
57
Supra note 21.

2019
2.4 The responsibility of resettlement of Development Induced Refugee rests upon Republic
of Ardenia.
12. It is humbly submitted that protecting and providing humanitarian assistance to Development
Induced Refugees and their resettlement (DIDR) because of Mega Hydro Electricity Project
is the sole responsibility of Republic of Ardenia. Principle 25 of General Principles on
Internal Displacement highlights that the prime duty and responsibility for providing
humanitarian assistance to Internally Displaced People lies with national authorities. 58 The
definition set down in the guiding principles goes beyond refugee like criteria to include
those displaced by natural or human made disaster. 59
13. It is submitted that Republic of Ardenia has no right to, or locus to oppose the order of
deportation as the protection of these people is primary responsibility of Ardenia which can
be imposed upon Eden. Just because the Ardenians happened to cross the unfenced borders60
does not make them a responsibility of Eden. National government, in fundamental ways, is
elemental to any effort to reduce overall development induced displacement and mitigate its
risks. 61 Project-affected peoples have various rights, including the basic human rights that are
common to all people everywhere. 62
14. Whereas DIDR have the right to freedom of movement and residence and to voluntarily
choose a durable solution, namely whether to return, integrate locally in their host
community or resettle in another part of the country. 63 The guarantee of freedom of
movement and choice of residence of internally displaced persons is also recognized in
instruments such as the Kampala Convention. 64 At minimum, regardless of circumstances
and without discrimination, competent authorities shall ensure that the evicted person have
58
UN High Commissioner for Refugees (UNHCR), Guiding Principles on Internal Displacement (1998), ADM
1.1,PRL 12.1, PR00/98/109.
59
S Basu, Practicing the ‘Guiding Principles’ for Development’s Displacees: Problems and Prospects,Ref. Watch. –
Sou.A. Jr.F. Mig., 37 (June 2011).
60
SAARC Round 2019.
61
S. Basu, Practicing the ‘Guiding Principles’ for Development’s Displacees: Problems and Prospects,Ref. Watch. –
Sou.A. Jr.F. Mig., 37 (June 2011).
62
Frank Vanclay, Project-induced displacement and resettlement: from impoverishment risks to an opportunity for
development? Impact Assessment and Project Appraisal, 35:1, 3-21. (2017).
63
United Nations. 2014b. Forced evictions. Fact Sheet No. 25. Rev 1. New York and Geneva: Office of the United
Nations High Commissioner for Human Rights. UN Habitat; [ July 2016].
64
African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (2009).

2019
access to basic shelter and housing, livelihood sources, essential medical facility, et cetera.65
Where the displaced and affected are not able to provide for themselves, the state party must
take all appropriate measures, to the maximum of its resources, to ensure adequate alternative
housing, resettlement or access to productive land. 66
65
After An Eviction: Immediate Relief And Relocation, Comprehensive human rights guidelines on development-
based displacement, page 11(E/CN.4/Sub.2/1997/7, annex).
66
Committee on Economic, Social and Cultural Rights, general comment No. 7 (1997).

2019
3. The deportation of Ms. Irwin from Republic of Eden to Kingdom of NWF does not
violate her basic rights.
It is humbly submitted by respondent state that the deportation of Ms. Irwin from Republic of
Eden to Kingdom of NWF does not violates her basic rights as it is just and lawful exercise
of sovereignty of a state over irregular migrants regarding admission and deportation in its
territory.
3.1 No obligation whatsoever to admit Ms. Irwin as a refugee.
1. The relationship between third parties and treaties is defined by a general formula
pacta tertiis nec nocent nec prosunt67. This principle has been recognized in states’ practice
as fundamental, and its existence has never been questioned. 68 A treaty only creates law as
between states which are parties to it.69 As stipulated under Article 34 of the 1969 VCLT70
states that treaty does not create either obligations or rights for a third state without its
consent. Under the VCLT Art. 35, the obligation shall be imposed on the third states under
two conditions namely, first; the states parties to the treaties intended to establish the
obligation for a state not party, and second; the third parties agree to be bound by it 71. It is
submitted that Republic of Eden is not a party to the UN Convention on the Refugee and
allied protocol; hence, it has no obligation and responsibility under the framework of
International law. 72
2. For an obligation to be imposed by a treaty upon a third state, the express agreement of that
state in writing is required, whereas in the case of benefits granted to third states, their assent
is presumed in the absence of contrary intention. This is because the general tenor of
customary international law has leaned in favour of the validity of rights granted to third
67
Shaw, N. Malcolm, International Law, Cambridge University Press, 4th edition, (1997).
68
Lord McNair, The Law of Treaties, 309 (1961);R.Rox-bourgh , International Conventions and Third States, 453.
(1917).
69
Certain German interests in Polish Upper Silesia, Germany v Poland, PCIJ Series A no 7 28 (1926); Chorzow
Factory Case, Germany vs. Poland, PCIJ Series A No. 17, 45 (1928); Customs Régime between Germany and
Austria (Protocol of March 19th, 1931), Advisory Opinion, PCIJ Series A/B No 41, ICGJ 287 48 (PCIJ 1931)
70
Vienna Convention on the Law of Treaties, Section 4: Treaties and Third States, (1969).
71
Vienna Convention on Law of Treaties, Article 35 (1969).
72
SAARC Round 2019.

2019
states, but against that of obligations imposed upon them, in the light of basic principles
relating to state sovereignty, equality and non-interference. 73
3. Further, the 1948 Universal Declaration of Human Rights famously provides that “everyone
has the right to seek and enjoy in other countries asylum from persecution”. 74 However, this
right to seek asylum has not been included in any legally binding instrument. In any case,
international law clearly does not provide for a duty to grant asylum. Further, the 1951
Refugee Convention does not make any mention of such a duty. It is submitted that states
have a right, rather than a duty, to grant asylum, which follows from their sovereign right to
control admission into their territory.75
4. Without prejudice to the other arguments, it is submitted that States may be bound by the
principle of non-refoulement, but they still retain discretion regarding both the grant of
durable asylum and the conditions under which it may be enjoyed or terminated.76 However,
decisions of expulsion are required to be in accordance with the due process of law, except
where compelling reasons of national security require otherwise. 77
5. It is submitted before the Hon’ble Court that respondent state vide its executive decision has
taken all the measures to deport and relocate all the displaced/refugee including Ms. Irwin 78
is in accordance with the due process of law which is just, fair and reasonable as now all the
displaced person including Ms. Irwin has become illegal settlers as their ten year long stay
visa has expired. 79
6. It is also to be submitted that Article 2 of SAARC Statue indicates that the association shall
be based on respect for the principles of sovereign equality, territorial integrity, political
independence, non -interference in the internal affairs of other States and mutual benefit. 80
73
Shaw, N. Malcolm, International Law, (4th edition, Cambridge University Press, 1997).
74
Universal Declaration of Human Rights, GA Res. 217 A (III), Article 14, (10 December 1948).
75
18 R. Sexton, Political refugees, non-refoulement and state practice: a comparative study, 731, 737-738
(Vanderbilt Journal of Transnational Law, 1985).
76
E. Lauterpacht and D. Bethlehem, The scope and content of the principle of nonrefoulement: opinion, in E. Feller,
V. Trk and F. Nicholson (eds.), Refugee protection in international law: UNHCR’s Global Consultations on
International Protection, (Cambridge: Cambridge University Press, 2003), 87-177, at 149.
77
Sale vs. Haiti an Centers Council, 509 U.S. 155 (1993)
78
SAARC Round 2019.
79
SAARC Round 2019.
80
SAARC Round 2019.

2019
7. Ms. Irwin and her children are not stateless persons because Kingdom of NWF is recognizing
them as its citizens and is willing to protect their rights81 and that It is further submitted that
State sovereignty implies responsibility and the primary responsibility for the protection of
its people lies with the state itself thus the Kingdom of NWF has the primary responsibility to
protect its citizens.
8. Promotion of voluntary repatriation constitutes the highest degree of UNHCR involvement,
when it is deemed that conditions in the country of origin have become conducive for return
in safety and dignity. 82
9. The physical safety of returnees must be assured by the authorities, monitored by UNHCR
and possibly supported by the international community, wherever return takes place 83 and it
is the duty of the UNHRC to ensure the safety of Ms. Irwin her country of origin.
10. That UNHRC is under obligation to improve the situation of refugees and to reduce the
number requiring protection and to make efforts to promote voluntary repatriation 84. In the
instant case also the UNHRC is required to follow the mandate.
3.2. Ms. Irwin not a refugee but an illegal immigrant.
Respondent state most respectfully submits that Ms. Irwin is an illegal immigrant and does
not have any right to remain in Republic of Eden and most respectfully showeth :
11. That Ms. Irwin has no refugee rights as such because she is not a refugee as conferring the
refugee status by UNHCR was erroneous and void, it is well settled that Refugee status
determination pursuant to UNHRC’s mandate is a core UNHCR protection function,. The
purpose of the mandate RSD is to permit UNHCR to determine whether an asylum seeker
falls within the criteria for international refugee protection. The determination of refugee
status has potentially profound implication for the security of the individuals as well as the
states concerned85, so the decision of recognizing a person as refugee should be taken with
utmost care and in strict adherence with the statutory mandates.
81
SAARC Round 2019.
82
General Assembly Resolution 428(v), (14 December 1950)
83
EXCOM Conclusion 18, Para. (h); EXCOM Conclusion 40, Para. (l)
84
Statute Of The Office Of The United Nations High Commissioner For Refugees, UN General Assembly, Article 8
(1950).
85
Procedural Standards for RSD under UNHCR’S Mandate.

2019
12. That the competence of the High Commissioner shall not extend to a person Who is
recognized by the competent authorities of the country in which he has taken residence as
having the rights and obligations which are attached to the possession of the nationality of
that country86, in case of Ms. Irwin, she was granted the basic Human Rights by Republic of
Eden irrespective of her nationality, she was enjoying the privilege of long stay visa granted
by Eden for ten years and therefore UNHCR lost the competence to recognize her as a
refugee.
13. Furthermore, her refugee status ceased as it cannot be granted to a person in respect of whom
there are serious reasons for considering that he has committed a crime covered by the
provisions of treaties of extradition87 or has violated the laws of the third state or is a threat to
the national security and peace.
14. That the competence of the High Commissioner shall cease to apply to any person if He can
no longer, because the circumstances in connection with which he has been recognized as a
refugee have ceased to exist, claim grounds other than those of personal convenience for
continuing to refuse to avail himself of the protection of the country of his nationality.
Reasons of a purely economic character may not be invoked.88
15. It is also submitted that according to the universally accepted definition of refugee Ms. Irwin
is not a refugee. The definition contemplates that “A refugee is a person who owing to a
well-founded fear of being persecuted is outside the country of his nationality, and is unable
to or, owing to such fear, is unwilling to avail himself of the protection of that country or
return there because there is a fear of persecution 89 and who are outside their country of
nationality or habitual residence and unable to return there owing to serious and
indiscriminate threats to life, physical integrity or freedom resulting from generalized
violence or events seriously disturbing public order 90.”
86
Statute Of The Office Of The United Nations High Commissioner For Refugees, UN General Assembly, Article 7
(1950).
87
ibid
88
Statute Of The Office Of The United Nations High Commissioner For Refugees, UN General Assembly, Article
6A (1950).
89
Convention Relating to the Status of Refugees, (1951).
90
Office of the United Nations High Commissioner for Refugees (UNHCR), p. 19, (2011).

2019
16. That in the case of Chan v MIEA. The court held that the phrase “well-founded fear of being
persecuted...” contains both a subjective and an objective requirement. There must be a state
of mind - fear of being persecuted - and a basis - well-founded - for that fear.91
17. The phrase ‘well-founded’ adds an objective element to the requirement that an applicant
must in fact hold a fear. For a fear to be well-founded, there must be a factual or objective
basis for that fear 92. Thus, ‘a well-founded fear’ requires an objective examination of the
facts to determine whether the fear is justified 93.
18. That Ms. Irwin was never persecuted, as Persecution means the sustained or systemic
violation of basic human rights demonstrative of a failure of state protection 94 or the failure
of State protection against a serious harm, including persistent discriminatory acts 95. In the
instant case at hand Ms. Irwin was neither persecuted by the state i.e. Kingdom Of NWF nor
was denied the protection by the state rather she never approached for seeking the protection
of state. The violence was committed upon by her own husband, which cannot be considered
as persecution.
19. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.
In MIEA v Guo, the Court said: Conjecture or surmise has no part to play in determining
whether a fear is well-founded. A fear is “well founded” when there is a real substantial basis
for it. As Chan shows, a substantial basis for a fear may exist even though there is far less
than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-
founded for the purpose of the Convention unless the evidence indicates a real ground for
believing that the applicant for refugee status is at risk of persecution. A fear of persecution
is not well founded if it is merely assumed or if it is mere speculation 96.
20. Further it is also submitted that Ms. Irwin had remedy available against atrocities committed
upon her in her own country i.e. Kingdom Of NWF. The constitution of NWF guarantees
several Fundamental Rights to its citizens, broadly corresponding to those recognized in
91
Chan v MIEA, 169 CLR 379 396 (1989).,MIEA v Wu Shan Liang,185 CLR 259 263 (1996).
92
Chan v MIEA, 169 CLR 379 (1989).
93
Chan v MIEA, 169 CLR 379 (1989).
94
J.C. Hathaway, The Law of Refugee Status, pp. 104-105 (Toronto, Butterworths, 1991); INS vs Cardoza Fouseca,
46 USSC 407 (1987); R vs Secretary of the Home Department Ex Parte Sivakumaran, 1 AII E.R.193 (H.L.:1988);
Joseph Adjeivs Ministry of Employment &Immigrati, 7:2d Imm.L.R 169 (1989).
95
13 H. Lambert, the Conceptualization of ‘Persecution’ by the House of Lords: Horvath v. Secretary of State for
the Home Department, 30 (1/2 International Journal of Refugee Law, 2001).
96
MIEA v Guo, 191 CLR 559 572 (1997);

2019
International Human Rights instruments. It further guarantees direct access to the Supreme
Court for the enforcement of these rights97. Ms. Irwin failed to exercise her right to
constitutional remedy guaranteed by her state.
21. Further, the respondent state vehemently submits that Ms. Irwin is not an asylum seeker as
she has never applied at her own volition for the same. It is submitted that she was granted a
long stay VISA for ten years to live in Eden but once the visa has expired she cannot be
allowed to overstay. She is illegally residing in EDEN for the past six years after the visa
expired.
22. It is settled law that a foreigner who overstays in the country may have to pay a fine, face
imprisonment and even be barred from entering the country in the future if the circumstance
demands so. For instance reliance may be placed on India, where a foreign national who
overstays his visa will be penalized 98. This Act provides for penalizing a foreign national
who remains in India for a period exceeding the period allowed by the visa. The penalty may
extend to an imprisonment term of 5 years along with a monetary fine.
23. It is submitted by the respondent state that one of the rights possessed by the supreme power
in every State is the right to refuse to permit an alien to enter that State, to annex what
conditions it pleases to the permission to enter it and to expel or deport from the State, at
pleasure, even a friendly alien, especially if it considers his presence in the State opposed to
its peace, order, and good government, or to its social or material interests. 99
24. In the instant case, deportation of Ms. Irwin is the lawful exercise of sovereignty to admit or
expel an alien. A right to seek asylum is not absolute and is discretionary power of state
offering it.
25. That the state practice accepts that expulsion is justified- for entry in breach of law or for
involvement in criminal activities100. Ms. Irwin’s expulsion is justified for entry in breach of
law as she concealed her identity and further her sons were prosecuted under NDPS Act.
97
¶ 3, Page 1, MOOT PROPOSITION, 4th Prof. N.R. Madhava Menon SAARCLAW Mooting Competition,
SAARC Round 2019.
98
The Foreigner’s Act, Section 14, (1946).
99
Vattel, Law of Nations, book 1, s.231; book 2, s.125’; Attorney General for the Dominion of Canada V Cain, AC
542 (pc: 1906).
100
David Harris, cases and material on international law, 470 (7thedn, sweet and Maxwell, south asian edition,
2011).

2019
26. It is submitted that according to accepted principle of international law the admission of
aliens is in the discretion of each state.101 The state has duty only towards its nationals to
admit them back on its territory. Further, it is submitted that Eden has no such obligation
towards Ms. Irwin as she is the national of Kingdom of NWF and the responsibility to protect
her lies with NWF itself.
27. Further it is vehemently submitted that the Republic of Eden is not deporting Ms. Irwin in an
arbitrary manner and the same is being done through a just and reasonable process of law.
However, she has failed to discharge the same.
3.3 Ardenian nationals are a threat to the security of the Republic of Eden.
28. On behalf of the respondent i.e. Republic of Eden, it is submitted that Eden is not a signatory
to the 1951 UN Conventions on the status of refugees and the 1967 protocol. No national law
has also been enacted till date regarding refugees and asylum seekers. Despite this, Edenian
Government has received accolades worldwide for their general policy of giving shelter to
refugees.
29. That the long term VISA of Ms. Irwin along with her children has been expired and
moreover the conviction of the petitioners is perceived as a threat to the security of the nation
and their involvement in drugs also poses a threat to the social fabric. Because of the
petitioners having involved themselves in a case under the NDPS Act, a conscious decision
has been taken by the Government to deport them.
30. For instance reliance may be placed on India where the Central Government has power to
deport foreigners from the country if they come to adverse notice or their presence in the
country is considered to be against the national interests.102 The said Act, therefore, confers
the power to expel foreigners from India and such power is absolute and unfettered and no
interference could be made with respect to the subjective satisfaction of the Union regarding
their decision to deport a foreign national. It has been contended on behalf of the Union of
Eden that the mere fact that petitioners were granted refugee status by the UNHCR does not
bestow upon them any right to stay and act criminally in the Republic of Eden
101
Paul Weis, Nationality and statelessness in international law, 46 (2ndedn, Laura Van Waas 1979).
102
The Foreigners Act, Section 3(2) (c), (1946).

2019
31. It is submitted that, by involving themselves in a case relating to NDPS Act, Ms. Irwin and
her Sons have lost their right to stay as a refugee in this country. However, the order of
deportation is not a punishment but only a method for ensuring the return of a refugee to his
own country if he has not complied with the conditions of his refugee status.
32. It is also submitted that the UN Single convention on Narcotic Drugs, 1961 and its 1972
protocol obligates the states parties to take necessary measures so as to give effect and carry
out the provisions of its conventions in its territories, co-operate with other states in the
execution of this convention.103 Further, the convention also contemplates that The Parties
shall not permit the possession of drugs except under legal authority. 104
33. Further, the SAARC Convention on Narcotic Drugs and Psychotropic Substances, 1988 also
contemplates that for the prevention and control of drug abuse and suppression of illicit
traffic, the member states are obligated to take necessary measures in conformity with the
fundamental provisions of their respective domestic legislative systems. 105
34. Without prejudice to other arguments, the respondents humbly submit that even if the
principle of "non-refoulement", which prohibits expulsion of a refugee, who apprehends
threat in his native country on account of his race, religion and political opinion, is taken to
be the part of the rights guaranteed under international customary law, This protection
available to a refugee, must not be at the expense of national security.
35. Government of Eden, has set out a standard operating procedure to deal with foreign
nationals who claim to be refugees. Under these guidelines the Govt. will consider all
possible alternatives including deportation to the home country and consultation with
UNHCR for a third country option.
36. The solitary instance of the petitioners having violated the penal municipal law of the country
has made the respondents decide that the petitioners be deported to their home country. It is
proven fact that the petitioners were found to be in possession of pseudoephedrine tablets,
attracting penal provisions of the NDPS Act. The sentence imposed upon them by a
competent Court of law has already been served by them. This clearly demonstrates that their
presence in the country would be detrimental to the interest of the nation in general.
103
UN Single convention on Narcotic Drugs, Article 4, (1961).
104
UN Single convention on Narcotic Drugs, Article 33, (1961).
105
Scope of the Convention, SAARC convention on NDPS, Article 2, (1961).

2019
37. It is the decision of the Union Government to permit or not to permit a refugee to stay in a
country or to grant or not to grant long term VISA in the first instance or its extension on a
year wise basis. The power of the Edenian Government to expel foreigners is absolute and
unlimited and there is no provision in the Constitution of Eden or other law, putting fetters on
the aforesaid discretion of the Government.
38. In Louis De Raedt& Ors. vs. Union of India, 106 the Indian Supreme Court has held that there
is no hard and fast rule regarding the manner in which a person concerned is to be given an
opportunity to place his case. In the aforesaid case, since it was not claimed by the petitioner
that if he were given a notice before passing a prejudicial order, he could have placed some
relevant material for the Government to consider, the Supreme Court did not accord the
aforesaid right of hearing to the petitioner.
39. The New York Declaration notes the obligation of “refugees and migrants to observe the
laws and regulations of their host countries”. 107 This obligation is also enshrined within the
1990 International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families (Migrant Workers Convention).
40. Migrants have the right to leave any country and return to their own country (see e.g. Article
12(2) and (4) ICCPR). They have however no concomitant right to enter and be admitted into
a third country. It is indeed for States to decide who they admit onto their territory. 108
41. Therefore, it is humbly submitted that the deportation of Ms. Irwin from Republic of Eden to
Kingdom of NWF does not violates her basic rights.
106
Louis De Raedt& Ors. Vs. Union of India, 3 SCC 554 (1991).
107
UN declaration for refugees and migrants adopted, para 39 (19th Sept 2016).
108
General Comment No. 15: The Right to Water, UNHRC, para 5, (2003).

2019
4. The nationalisation of Ardenia Power Corporation Ltd. violates rights of Republic of

Eden.
It is submitted that the nationalization of APCL violates the rights of the Republic of Eden:
4.1 Expropriation is per se illegal.

1. Expropriation i.e. taking contrary to promises amounting to estoppel or concern property
owned by foreign state and dedicated to official state purpose or contrary to treaty, is per se
illegal, which in turn involves the liability for consequential loss (lucrumcessans) 109.
Expropriation is an action that prevents, unreasonably interferes with or unduly delays
effective enjoyment of an alien’s property. Even on demonstration the owner is deprived of
fundamental right of ownership 110, the expropriation takes place.
2. It is humbly submitted that the Republic of Eden (Investor), has identified its interference
with investment's ability to carry on its project, while the interference has resulted in
significant monetary loss as well as the legitimate control over the subsidiary, SPV Ardenia
Power Corporation Ltd has also been adversely affected which in toto amounted to
substantial deprivation of “effective use” of the said property.
3. Apart from the proprietary rights of the respondent state, the nationalization of SPV would
hamper the national interest of the respondent state which the concerned project supposed to
serve. It is accepted Principle of International law that “the intent of Government is less
important than the effects of the measures on the owner, and the form of the measures of
control or interference is less important than the reality of their impact.”111
4. Further that the Govt. of Ardenia nationalized the APCL by bringing ordinance and took over
the control of management of Mega Hydro- Electricity Project in the national interest112
which is an executive move and not a legislative process therefore, violation of due process
of law.
5. That the protocol to the Convention for the Protection of Human Rights and Fundamental
Freedoms recognizes this principle. Article 1 of this protocol recognizes the right to property
109
Amoco International Finance Corporation v. Islamic Republic of Iran, 27 I.L.M. 1314 (1988).
110
Tppetts v TAMS-ATTA, 6 Iran-U.S.C, T, R 219 215 (1985).
111
Starrett Housing corp. v iran, Iran-U.S.C.T.R. 3 I.L.M. 1090 122 (1984).
112
SAARC Round 2019.

2019
as a fundamental human right as follows “Every natural or legal person is entitled to the
peaceful enjoyment of his [or her] possessions. No one shall be deprived of his [or her]
possessions except in the public interest and subject to the conditions provided for by law
and by the general principles of international law.” Process of Nationalization under the
Ordinance violates the mandate of above mentioned protocol therefore, is Illegal per se.
4.2 The water crisis in city of Oxenberg was not due to the Hydro Power project.
6. The United Nations General Assembly adopted Resolution 1803 (XVII) on Permanent
Sovereignty over Natural Resources, which proclaimed, inter alia: Nationalization,
expropriation or requisitioning shall be based on grounds or reasons of public utility, security
or the national interest which are recognized as overriding purely individual or private
interests, both domestic and foreign….further it also declares that foreign investment
agreement entered into, by or between the , sovereign state shall be observed in good faith.
7. It is a generally accepted principle that no state has a right to expropriate only for financial
purpose. The public purpose sought to be remedied by expropriation must be directly
affected by the investor state’s project, which is absent in the present situation. The Expert
Committee in its preliminary report stressed that the crisis is not about scarcity of water,
rather its management, allocation and attaching priority of availability. 113 Apparently, the city
of Oxenberg is situated on the eastern part of upstream of Mega Hydro –Electricity project
executed by the Republic of Ardenia, the water crisis in the city cannot be the aftereffect of
the exercise of Right to Control the water level of the Respondent State.
8. In addition to this, geographically, the Republic of Eden being one of the lower riparian state
is always at a receiving end of any disaster and the ultimate victim of it. Apparently, the
mega-structure would not help in tackling energy poverty in terms of electricity/ power
therefore; the sole object of the agreement by the respondent state was to solve the problem
of perennial flood during monsoon season by controlling the flow of water. 114 For tackling
this, the respondent state reserved the right to control water level in dam and its release
113
¶ 45(i), Page 10, MOOT PROPOSITION, 4th Prof. N.R. MadhavaMenon SAARCLAW Mooting Competition,
SAARC Round 2019.
114
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2019
during the monsoon season115 which is more a need than privilege for the state and not, at all
exploiting its position of strength. 116
9. That the financial burden on the respondent state itself suggests the gravity of need and
ambition for speculated result. Therefore it is submitted that, the nationalization of SPV,
would result into substantial loss for the respondent state as the whole purpose of the
agreement would be defeated.
10. That the classical standard for nationalization requires: (1) the taking be for the public
purpose, (2) the taking be nondiscriminatory against aliens, and (3) the state provide prompt
and full compensation in an effectively realizable form.” The justification for the
nationalization process of APCL as the erstwhile management of Ardenia Power Corporation
Ltd. under the control of Govt. of Eden was not releasing the amount of water for its people
who led to the Oxenberg water crisis holds no ground. The pleaded national interest by the
petitioner state i.e. rectifying the worst water crisis in Ardenia is, in fact, not related with the
Mega Hydro Electric project. Expropriation may be justified only on the basis of ‘Public
utility’. It is submitted that there is no substantial public utility that could justify the
nationalization of its investment through APCL.
4.3 Sanctity of contract.

11. It is submitted that the prima facie principle which governs contractual relation on the
international form is pacta sunt servanda. Vienna Convention under Article 26, specifically
carries the spirit of this principle as every treaty in force is binding upon the parties to it and
must be performed by them in good faith. Further Article 27 denies the justification of
internal laws for non-compliance of the treaty.
12. One of the primary means of determining international consent to a particular rule is the
custom and practice of nations. It is submitted that the act of the contracting government will
entail state responsibility by itself, or in combination of certain other circumstance, which
constitutes the denial of justice or an expropriation contrary to law. Further, annulment of
contract is illegal, if it is arbitrary or discriminatory and an action which lacks normal public
115
Ibid.
116
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2019
purpose is arbitrary. As it has been submitted in the preceding argument, the basis of
annulment of the contract is suppose national interest of water crisis which, as argued not
caused by the concerned agreement and project.
13. It is accepted principle of International Law that the rights acquired by foreign national by
virtue of concessionary contracts are property rights and that as such they are entitled to the
same protection as international law grants to the property right of the foreigners. 117 Further
concession contract, in particular for the exploitation of natural resources are governed by
other legal rules indicated usually in a choice of law clauses in the contract. 118 Whereas, in
violation of the agreement, Republic of Ardenia acted in gross breach of its obligation as it
did not let the intermediary period of six months to laps after which the respondent state
could submit the dispute to the arbitration. 119
4.4 Annulment is void on the basis of equitable principle of justice.

14. Without prejudice to the above argument, the annulment of the contract is illegal even on the
basis of equity. It is submitted that the nationalization violates this principle as it leaves the
respondent state empty handed. To substantiate this, historically, more economically
backward a nation, the more drastic and explosive will be its road to industrialization.
Asevere shortage of capital in these developing nations has slowed the process of
industrialization. Ardenia in the present case has appealed to capital exporting state to
facilitate industrialization and remedy the increasing demand of electricity via carrying on
the project with Republic of Eden.
15. It is submitted that the required area for the development of Mega Hydro- Electricity Project
was identified jointly by the Expert Committee constituted by Republic of Ardenia and
Republic of Eden120. Without prejudice to the proposed argument, even if the crisis is the
aftereffect of the project, that is voluntary act of claimant state for the requirement of
electricity to facilitate the setting up of industrial park/ zone near the city of Oxenberg in
Ardenia. Therefore, it is presumed that republic of Ardenia has speculated, the cause and
117
Anglo Iranian Oil corporation case, United Kingdom v. Iran, I. C.J. Reports 93(I952).
118
Texaco Overseas Petroleum Co. v. Libya, 17 I.L.M. 1 (1978)
119
Dispute settlement clause, Rule 8.
120
SAARC Round 2019.

2019
effect of it before entering into agreement and availing substantial benefit under it which is,
grant of stipulated 30% of total generation of electricity for free to the Republic of Ardenia
for next 25 years. 121
16. Further, as per the international law, the taking state must be capable enough to grant
"prompt, adequate, and effective compensation" 122 to the alien state. So far as the third world
countries are concerned the liberty is granted to quantify the amount of compensation on the
basis of their ability to pay123. The Resolution 1803 requires that in such cases the owner
shall be paid appropriate compensation, in accordance with the rules in force in the State
taking such measures in the exercise of its sovereignty and in accordance with international
law be paid in the event of an expropriation. Further, the Charter of Economic Rights and
Duties of States124, which declares that in any case where the question of compensation gives
rise to a controversy, it shall be settled under the domestic law of the nationalizing State and
by its tribunal. 125Here, in 1962 resolution "appropriate" implies, compensation that is fair and
reasonable given the circumstances of the taking is mandated.
17. In the Chorzow Factory case126the Permanent Court of International Justice enunciated what
was thereafter generally accepted as the requisite degree of compensation. The Court held
that compensation required "restitution in kind, or, if this is not possible, payment of a sum
corresponding to the value which a restitution in kind would bear ... "In the Norwegian
Shipowner 127Claims the Permanent Court of Arbitration declared that "just compensation
implies a complete restitution of the status quo ante, based, not upon future gains of the
United States or other powers, but upon the loss of profits of the Norwegian owners. 128In the
De Sabla Claim. 129On reaching the merits, the arbitral tribunal held that "it is axiomatic that
acts of a government in depriving an alien of his property without compensation imposes
121
SAARC Round 2019.
122
BancoNacional de Cuba v. Chase Manhattan Bank, 658 F.2d 875. 888 2d (Cir. 1981).
123
The Barcelona Traction, Light & Power Co. (Belg. v. Spain), l.C.J. 3 (1970).
124
Charter of Economic Rights and Duties of States, United Nations Resolution 3281(XXIX), (1974).
125
Charter of Economic Rights and Duties of States, United Nations Resolution 3281(XXIX), Article 2(c), (1974).
126
The Chorz6w Factory Case (Ger. v. Pol.), P.C.I.J., series A., No. 13 (1928).
127
Norwegian Shipowners' Claims (U.S. v. Nor.), I RIAA 307 (1922).
128
Norwegian Shipowners' Claims (U.S. v. Nor.), I RIAA 307 338 (1922).
129
De Sabla Claim (U.S. v. Pan.), 6 R. Int'l Arb. 358, 359 (1933), 28 AM. J. INT'L L. 602 (1934).

2019
international responsibility." 130 Therefore held that the fair market value of the property taken
was the proper measure of damages.
18. However, In Anglo-Iranian Oil Co. v. S.U.P.O.R. Co131, where some compensation for the
expropriation was held sufficient for holding an expropriation lawful , it was also laid down
that a definition of fair compensation must take "into account the circumstances of each
individual case and, therefore, [take] into consideration also the public interest" of the
nationalizing state. It is humbly submitted that, the cost of the project was to be completely
borne by Republic of Eden132.Therefore, the public interest sought to be served by the
nationalization of the SPV is disproportionate to the possible damage to the respondent state.
19. In lieu of this, the Republic of Eden itself is a developing economy, facing problems like
illiteracy, poverty, child labour, gender inequality, and unemployment.133 Under most recent
bilateral commercial treaties, an indemnity equal to the value of the expropriated property is
an accepted principle in International transaction. Indeed, even UN General Assembly
Resolution 1803 accords to the taking state a certain degree of consideration in establishing
the degree of remuneration. Consequently, there is substantial support for the proposition that
international expropriation law requires that the compensation, be reasonably related to the
value of the property taken. Therefore, it is submitted that, Republic of Ardenia is, incapable
of bearing even the compensation which is reasonably related to the damage occurred from
the expropriation, due to unfavorable economic condition resulting from water crisis.
4.5 Proportionality of obligation.

20. It is submitted that Article 3 of United Nations Framework Convention On Climate Change,
1992, dealing with principles, which inter alia, lays down that “The specific needs and
special circumstances of developing country parties, especially developing country parties,
that would have to bear a disproportionate or abnormal burden under the Convention, should
be given full consideration.” The means adopted to combat the climate change in Ardenia, is
disproportionate to the actual liability of the respondent state and may termed as arbitrary or
130
De Sabla Claim (U.S. v. Pan.), 6 R. Int'l Arb. 336 (1933), 28 AM. J. INT'L L. at 611.
131
ForoItaliano [Foro It.] I 256, 22 I.L.R. 23Sept. 13, 1954, Trib., Roma, 1955.
132
SAARC Round 2019.
133
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2019
unjustifiable discrimination or a disguised restriction, which is forbidden under the above

mentioned convention.134
21. That the facts itself suggests that city of Oxenberg in Ardenia faced “one of its” worst water
crisis. 135Impliedly, it may be unprecedented or worst but not the only crisis the city has faced.
The crisis is aftereffect of the various industrial program of Republic of Ardenia along with
big bottling companies like Coca-Cola and others which draws the water it uses to make soft
drinks and bottled water from city sources. 136 Erstwhile management of Ardenia Power
Corporation Ltd. under the control of Govt. of Eden was not releasing the amount of water
for its people which led to the Oxenberg Water Crisis is therefore not a justification for
nationalization, when uneven access to water result of the mismanagement and rapid
industrialization in the city of Oxenberg.
134
United Nations Framework Convention on Climate Change, Article 3(5), (1992).
135
SAARC Round 2019.
136
SAARC Round 2019.

2019
PRAYER FOR RELIEF SOUGHT
Wherefore, in the lights of facts stated, issues raised, authorities cited & arguments advanced, it is
most humbly prayed & implored before the Hon’ble Court, that it may be graciously pleased to
adjudge & declare –
A. That, the order of deportation passed by Republic of Eden does not violates any
international norm or obligation;
B. That, displaced Ardenian nationals are not ‘refugee’ under the contemporary framework;
C. That, deportation of Miss Irwin would not infringe principle of non-refoulement;
D. That, ordinance nationalizing Ardenia Power Corporation Ltd. is illegal and unjustified;
And/or
Pass any other relief, that this Hon’ble Court may deem fit and proper in the interest of justice,
equity and good conscience. For this act of Kindness, the petitioners shall be duty bound forever
pray.
The Respondent,
[AGENT ON BEHALF OF RESPONDENT]
PLACE: ……………….
DATE: ……./……./……

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TEAM CODE: SR04

FOURTH PROF. N. R. MADHAVA MENON SAARCLAW

THE INTERNATIONAL COURT OF JUSTICE

UNHCR................................................................................................ APPLICANT (1)

Upon Submission to the International Court of Justice

MEMORANDUM ON BEHALF OF THE RESPONDENT DRAWN AND

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1. A.C. Mohd. Siddique v. Government of India 47 DRJ (DB) 74 (1998). ............................... 20

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6. Chan v MIEA, 169 CLR 379 396 (1989) ............................................................................. 31

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24. H. Lambert, the Conceptualization of ‘Persecution’ by the House of Lords: Horvath v.

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a. the interpretation of a treaty;

3. The declarations referred to above may be made unconditionally or on condition of

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Furthermore, the application filed by Republic of Eden on issue of nationalization of Ardenia

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4. Expropriation of Ardenia Power Corporation Ltd. by Republic of Ardenia is in gross

Expropriation of Ardenia Power Corporation Ltd. by Ardenian government is illegal and

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1.1.2. Republic of Eden cannot provide ‘diplomatic protection’ migrants.

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1.2.2. Principle of non-refoulement has not attained the status of Customary

7. Furthermore, it is an argument of the respondent state that the principle of ‘non-refoulement’

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8. It is submitted that the jurisdiction of the International Court in contentious proceeding is

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because of a marked environmental disruption (natural and/or triggered by people) that

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2.3 Recognition of UNHCR is not per se binding on the state authorities.

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3.1 No obligation whatsoever to admit Ms. Irwin as a refugee.

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3.2. Ms. Irwin not a refugee but an illegal immigrant.

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4. The nationalisation of Ardenia Power Corporation Ltd. violates rights of Republic of

4.1 Expropriation is per se illegal.

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4.3 Sanctity of contract.