KENYATTA UNIVERSITY SCHOOL OF LAW MOOTING LPL 403
IN THE INTERNATIONAL COURT OF JUSTICE AT THE PEACE PALACE THE HAGUE, THE NETHERLANDS
IN THE CASE CONCERNING THE ALFURNAN MIGRANTS
THE STATE OF ALFURNA APPLICANTS.
THE STATE OF RUTASIA. RESPONDENT.
1. MAINA PATRICK NJAMA. 2. PAUL MUHORO. -
3. ROSEMARY N. KIMANI.
Contents..................................................................................................................... 2 STATEMENT OF JURISDICTION.................................................................................... 3 QUESTIONS PRESENTED............................................................................................. 3 STATEMENT OF FACTS................................................................................................ 4 SUMMARY OF PLEADINGS......................................................................................... 13 PLEADINGS............................................................................................................... 14 1.Alfurna is no longer a state and accordingly lacks jurisdiction over Alfurnas claims.................................................................................................................... 14 i). Definition and criteria of statehood..............................................................14
iii)permanent population....................................................................................... 16 iv.)No effective Government................................................................................. 16 vi.)Competence of the court.................................................................................. 18 b).Rutasia has not violated international law in its treatment of migrants from Alfurna................................................................................................................... 18 c)Alfurnan migrants held in Woeroma centre are being treated in accordance with Rutasia’s obligations under international law and the proposed transfer to Saydee is legal................................................................................................................... 21 d).Rutasia’s conduct in respect of Alfurna’s assets is consistent with international law......................................................................................................................... 23 Conclusion/Prayer for Relief...................................................................................... 27 REFERENCES............................................................................................................. 27
including the rights and obligations of the Parties. the Court is hereby requested to adjudge the dispute in accordance with the rules and principles of international law. including any applicable treaties and to determine the legal consequences.” and in accordance with Article 40(1) of the Statute of the International Court of Justice. In accordance with Article 3 of the Compromis. collectively “the parties.STATEMENT OF JURISDICTION Pursuant to the Joint Notification and Compromis concluded on 14TH/September/2012. the Parties hereby submit to this Court its dispute concerning the Alfuran Migrants. arising from its Judgement on the questions presented in the Case. The Netherlands between Alfurna( “the Applicant) and the State of Rutasia (“the Respondent). QUESTIONS PRESENTED The State of Rutasia respectfully asks the honorable Court: 3 . signed in The Hague.
to the 4 . Whether the proposed transfer of Migrants from (the former) Alfurna to the Republic of Saydee is legal. Whether Rutasia has violated international laws in its treatment of Migrants from (the former) Alfurna. Whether Rutasia has an obligation to accept the illegal Migrants from (the former) Alfurna into its territory. Whether Rutasia’s conduct in respect of Alfurna’s assets is consistent with international law. which will determine whether the court has jurisdiction in the matter. since it lost all of its territory. Whether Alfurna has the right to make any claims with regards to the migrants since it failed to take available affirmative steps to protect them.Whether Alfurna is still a state. STATEMENT OF FACTS The dispute centers on Rutasia’s detention and planned transfer of Alfurnan Migrants in the Woeroma Immigration Processing and Detention Centre (“the Woeroma Centre”).
and in 1904 became the independent republic of Alfurna. and over the course of the next 20 years. many Rutasians travelled to Alfurna for tourism and business each year. Relations between Rutasia and Alfurna have always been friendly. its economy was based on agriculture and the abundant fisheries in the Bay. With the increased income from tourism. including under the Heavily Indebted Poor Countries Initiative. investment in the Alfurnan tourism sector accelerated and the industry grew rapidly. is a permanent member of the Paris Club. but was generally around 1. Initial investments proved to be very successful. and for decades. The Nullatree Cove village population fluctuated over time. and foreign development assistance in the form of grants and loans. but rejected urbanisation and technology. Rutasia’s head of state is President Eileen Millard. including the national airport on Batri. They were of the same cultural and ethnic origins as other Alfurnans.Republic of Saydee. In the mid-1960s. Alfurna’s Gross Domestic Product had risen to USD 200 million.500 people. 5 . particularly those in the Bay of Singri region. Rutasia also lends and provides development assistance to other governments. Nullatree Cove villagers maintained a subsistence lifestyle.000. and the closure and liquidation of the Alfurna Reserve Bank’s account held by the Provincial Bank of Lando. Nullatree Cove was a coastal village on Engili. a developed state on the western side of the Bay of Singri approximately 800 miles west of the islands. Batri and Engili were two low-lying islands located in the Bay of Singri. one of Rutasia’s provincial reserve banks. but is heavily reliant on the burning of fossil fuels. In 2001. Alfurna historically maintained a close relationship with Finutafu. Rutasia is a large developed state on the eastern side of the Bay of Singri. and has participated in a number of sovereign debt restructurings under Paris Club arrangements. entrepreneurs were attracted by Alfurna’s potential as a tourist destination. through a Presidential Direction from President Eileen Millard of Rutasia on 15 March 2012. and its population was 53. For much of Alfurna’s history. They were settled by Finutafu in 1812. Rutasia has a diverse economy. whose residents had lived in isolation from other islanders since the mid-nineteenth century. its coast lying approximately 350 miles east of Alfurna. Alfurna was able to expand and upgrade some of its basic infrastructure.
In response to these vulnerabilities. Later that year. the Bay also experiences undersea earthquakes with resulting tsunamis that have devastated the surrounding coastal regions. the rate at which sea levels were rising had increased to such an extent that many parts of the islands were underwater even at low tide. and owing to such local factors as salinity. and evaporation. rainfall. in addition to water-level changes resulting from waves and tide. Rutasia signed and ratified the UN Framework Convention on Climate Change (“UNFCCC”) in 1992. riverine input.The climate of the Bay of Singri includes an annual monsoon season with strong cyclones and heavy and unpredictable winds preceding and following the monsoons. Erosion from the inundation and the routine monsoon and cyclone activity accelerated the extent to which areas of the islands were becoming submerged. the Alfurnan government sought grants and loans from various sources to finance a programme of repairs and remedial works. although from the very beginning monitoring and maintenance of the seawalls were hampered by budgetary difficulties. tied to the use of Rutasian expertise and 6 . The hydrology of the Bay is such that. Occasionally. seawalls were erected around the islands in the early twentieth century. the average sea level varies throughout the year. the Bay has exhibited a net water gain over the past two centuries.” The arrangement consisted of a “climate change loan” of USD 125 million. By 1990. The Rutasian and Alfurnan governments swiftly reached agreement on a first step toward what were called “Rutasia-Alfurna Closer Economic Relations. in response to growing public alarm at the persistent inundation of parts of the islands and associated damage. Within the first decade of Alfurna’s settlement it became clear that low-lying regions of its two islands were in frequent danger of being swamped during the Bay’s extreme weather and earthquake events. with parts of the seawalls falling into the Bay as the underlying land was washed away.
attempting to pass resolutions in the General Assembly to this effect. Rutasia insisted that the final document include a provision requiring Alfurna to use the services of Rutasian companies to perform substantial contracts. Alfurna’s central bank. Most of the funds were used to pay for various ACCR Project activities. railways and other public infrastructure. Alfurna signed and ratified the UNFCCC in 1997 and the Kyoto Protocol to the UNFCCC in 1998. to perform the construction and maintenance work on the seawalls. Disbursement was conditioned on the funds being applied to repairing the seawalls and related damage. on numerous occasions. then to be withdrawn for uses contemplated in the agreement.resources for a long-term initiative styled the “Alfurna Climate Change Remediation Project” (“ACCR Project”). a government agency. The climate change loan agreement was executed on 5 June 1992. The climate change loan was made through the Rutasian International Cooperation Administration (“RICA”). In accordance with that requirement. 7 . From the mid-1990s. The studies concluded that one of the main causes was the warming of the Earth’s climate. Rutasia signed the Kyoto Protocol in 1998.designing and implementing other remedies and preventative measures to combat inundation. but has not yet ratified it. During the negotiations that resulted in the agreement. so long as properly qualified entities submitted bids. Mainline Constructions Limited (“MCL”). The loan arrangement required that funds be deposited into that account. Alfurna also drew particular attention to the plight of low-lying island nations facing increasing challenges posed by rising sea levels. the Alfurna Reserve Bank (“ARB”). Alfurna contracted with Rutasia’s largest private-sector construction company. had maintained an account in the Provincial Bank of Lando. Between 1992 and 1997. and associated research. called upon states to take measures to combat climate change. including scientific studies into the causes of and potential solutions for rising sea levels in the Bay of Singri. for many years. the full amount of the climate change loan funds were disbursed by RICA into Alfurna’s Bank of Lando account. and made repeated calls on major nations to provide assistance. bridges. successive Rutasian governments committed to a massive public works programme of rebuilding and expanding the nation’s aging network of roads. one of Rutasia’s provincial reserve banks.
to negotiate relief on the basis of its current and anticipated financial pressures. Alfurna failed to pay any interest or principal as required under the climate change loan.0% to 1. the International Monetary Fund reported that Alfurna’s debt had reached 120% of GDP. Alfurna approached the lenders. Alfurna and MCL submitted their contractual dispute involving the repair work to arbitration. to 2027).According to uncontested academic studies. and rescheduled repayment over an additional 15 years (that is. Later that year. the withheld funds would remain in 8 . and did not meet repayment obligations to various other members of the Paris Club. At the conclusion of the discussions in September 2002.5%. Alfurna complained that a significant amount of MCL’s repairs to portions of the seawalls was substandard. Alfurna withheld USD 20 million that MCL claimed pursuant to their contract. Prime Minister Fatu and President Millard jointly announced an agreement that a further 25% of the loan would be cancelled.1%. based on a “best case” analysis. Alfurna would be granted a grace period on repayments of principal and interest until 15 September 2010. Alfurna would encounter severe debt servicing problems within three years. should Alfurna prevail in the MCL arbitration. In January 1999. to 2047). As it did not qualify for restructuring of its debt under Paris Club rules. the interest rate would be reduced to 1. at the conclusion of which it was able to secure varying forms of debt relief. In November 2001. and the period for repayment of the loan would be extended for a further 20 years (that is. which it agreed to preserve in the ARB account at the Provincial Reserve Bank of Lando until the arbitral panel issued its final award. Having received correspondence from RICA and the other lenders regarding these failures to pay. cancelled 25% of the climate change loan principal. As the work in connection with the ACCR Project continued. MCL rejected Alfurna’s claims. and had a high risk of missing principal payments again within the next five years. including Rutasia. In July 2002. Alfurna’s Treasury reported to Prime Minister Fatu that. The news from the Treasury prompted Prime Minister Fatu once more to seek renegotiation of the climate change loan terms with RICA. reduced the annual interest rate from 2. this initiative accelerated the generation of carbon emissions and soot by Rutasian industry. It was also agreed that. Rutasia. in accordance with the loan agreement. Alfurna engaged in a year of bilateral negotiations with each of the lender governments.
can live on whilst Mother Nature takes our beloved islands from us. which I am 9 . in favour of Alfurna. But be assured that I will be asking all of our countrymen and countrywomen for unprecedented sacrifice. the arbitrators issued their final award. the Fatu government decided to implement all of the CEC’s recommendations. We must work together over the coming months and years to plan and execute a bold and unprecedented strategy – the transplanting of our people to a new land. which concluded with the following words:My fellow Alfurnans. In November 2002.The tribunal concluded that the failure to observe industry standards in construction of the seawalls by MCL actually accelerated their collapse.the ARB account. It advised the government to identify a new “homeland. awarded damages of USD 35 million to Alfurna. The CEC recommended that the government start making plans to evacuate the Alfurnan islands. to ensure that Alfurna. our people and our culture.” and/or countries willing to accept Alfurnans who would be made homeless by the impending crisis. In August 2004. we face the greatest challenge in our history: a threat to our very survival as a nation. Prime Minister Fatu made a televised address to the country. MCL promptly paid the damages award into the Lando Bank account held in the name of the ARB. with the consequence that sea levels even at low tide would overwhelm the islands. that the combination of earthquakes and extreme weather events would destroy the seawalls within a few years. The CEC also noted that these issues were fast becoming impossible to address given Alfurna’s other financial challenges. You will hear more in the coming days. Prime Minister Fatu established a “Climate Emergency Committee” (“CEC”) comprising his most senior government ministers in early 2003. the CEC reported. The panel found that a substantial portion of the most recent damage to the collapsed seawalls was due to construction methods and selection of materials that did not adequately account for the rapid wear and tear caused by severe weather and frequent inundation of saltwater. their use restricted to the original purposes and governed by the procedures of the climate change loan. to examine the future prospects of Alfurna in light of recent developments. and authorized the release of the USD 20 million that had been retained in the ARB account pending the tribunal’s award. based on its assessment of the scientific evidence. In January 2005.
Alfurna ceased repaying any of its loans. In the spirit of cooperation and in recognition of our shared humanity.” “The fate of my country. “rests in the hands of the international community. Approximately 15.000 Batri Island residents were also able to relocate to Finutafu. as he put it. In mid-2006. key agencies and the executive officers of Alfurna’s government relocated to Finutafu. Our people need shelter and other basic assistance. The various negotiations ultimately stalled later in 2006. and swiftly thereafter. Prime Minister Fatu also approached the U. the Alfurnan Parliament passed legislation declaring a moratorium on servicing all debt to foreign lenders. too small. “to the people of the nation and to the nations of the world”: We are making every effort to obtain a new homeland for all of our Alfurnan people. During this time. because the territories offered were too costly. A few months later. Properly identifying a suitable area and securing the necessary arrangements are taking time. large sections of the seawall that had shielded Batri from the Bay of Singri were washed away. with your help. and in the interests of our future generations. General Assembly.confident you will accept in homage to our forebears. Prime Minister Fatu spoke again. to fund the CEC’s initiatives. a major earthquake rendered much of Batri Island essentially uninhabitable. occupying premises granted on temporary terms to be reviewed annually until the Alfurnan government obtained a new homeland. And we vow that. Immediately following the Prime Minister’s speech. but negotiations were slow. to ensure their survival in dignity and peace. The CEC asked several other countries in the region to accept substantial numbers of Alfurnan migrants. whilst the remainder fled to Engili. Over the course of the next few months. also causing significant damage to Rutasia. all 10 . we call on all states to help us.” Prime Minister Fatu delegated to the CEC the role of identifying suitable options for a new homeland and approaching other nations to acquire the necessary territory. and no state expressed willingness either to cede territory or to provide refuge of potentially indeterminate duration to émigrés who might number in the tens of thousands.N. This is not easy. The CEC was also tasked with seeking and negotiating emergency migration arrangements. or lacked appropriate climate and topography. calling upon all states to assist Alfurna at what he termed “a time of unique tragedy and unique challenge. Batri Island was submerged permanently.” he concluded.
In the second quarter of 2007.Alfurnans who wish to join in our future as a nation will be united once again in a new homeland. A total of 2. and as a result in late 2008. with the majority relocating to Finutafu. drifting towards the coast. the CEC was able to persuade Finutafu to consider ceding Nasatima Island. A few of these individuals also had Alfurnan criminal records. and the two countries’ negotiators initialled a proposed treaty to accomplish that objective. Among various austerity measures. Roughly half of the remaining Alfurnans were residents of the Nullatree Cove area. During 2009 and 2010. The Alfurnan government’s evacuation plans and individual arrangements enabled all but approximately 3. who had refused to take part in the emergency migration program because they did not wish to leave their ancestral land. By early 2009. The remaining parts of the seawall around that Island were further damaged. Rutasia ordered RICA to improve its recovery of development assistance loans to other states. the Rutasian Navy encountered a number of overcrowded boats filled with Alfurnans in Rutasian territorial waters. a series of increasingly severe storms in the region caused widespread flooding and damage to Engili. Finutafu had agreed in principle to cede Nasatima Island to Alfurna. as world credit markets tightened. Later in 2007. Formal negotiations for the sale and purchase of Nasatima Island commenced in November 2007.000 Alfurnans to resettle elsewhere. Its own loan repayment obligations and the costs of attending to the consequences of the 2007 storms forced Rutasia to find alternative streams of funding to meet its immediate financial commitments. 11 . the only facility of its type maintained by the Rutasian Immigration Department. meaning they did not meet the good moral character requirements imposed by all of the receiving states.978 Alfurnans were intercepted and brought to Blocks A and B of the Woeroma Immigration Processing and Detention Centre (“the Woeroma Centre”). which had been a national park and was inhabited only by park rangers. and it became obvious that it was only a matter of time before they too collapsed. it experienced severe financial pressure. By 30 September 2008. the storms and earthquakes had made Engili practically uninhabitable. Rutasia had borrowed heavily to fund its public works programme.
the damage was found to be superficial. a small earthquake in the Bay of Singri caused cracking in the walls of both Blocks of the Woeroma Centre. and would cost at least USD 110 million. health. Finutafu blamed the inability of the Alfurnan government to demonstrate that it had access to sufficient funds to purchase the Island. and demanded that Alfurna remedy the default 12 . Alfurna is permitted to cancel the lease with five years’ notice. and could not commit to doing so in the longer term. believing that it would help to maintain order among the Alfurnan migrants. The other Alfurnans were housed in Block B. the Nasatima Island negotiations collapsed. They were to be processed by Saydee’s immigration authorities and housed in existing detention facilities. an earthquake destroyed the remaining sections of Alfurna’s seawall. and welfare of the transferees would be met by Rutasia. agreed. Because it could no longer accommodate the housing requests of the Nullatree Cove villagers in the short run. and Engili Island became permanently submerged under water even at low tide. but the cracking in Block A revealed that the walls contained asbestos. who requested that they be housed together. On 26 December 2011. after further pleas from the CEC and NGOs. and that the design and construction of new facilities would take two years.492 were Nullatree Cove villagers. The term of the lease is for 99 years. Finutafu’s government agreed to lease Nasatima Island to Alfurna. and housed the Nullatree Cove villagers in Block A. the Immigration Department declared on 10 January 2012 that it could not continue to provide separate facilities for the Nullatree Cove villagers at Woeroma. 1. The lease provides that Alfurna will have complete control over the Island. and its residents will have no claim to Finutafuan citizenship or to the protection of that country’s laws. Following an assessment of resulting health risks. RICA put Alfurna on notice on 10 February 2012 that it had been in default under the renegotiated loan agreement for over a year. On 23 January 2012. Rutasia negotiated an agreement with the Republic of Saydee to transfer all of those detainees to Saydee by 28 September 2012. On inspection.Of the migrants brought to Woeroma. On 15 November 2011. at an initial rental of USD 1 million per year. if and when it procures a permanent homeland. the larger and older Block. The rent is to increase with an agreed measure of inflation. Rutasian authorities. The agreement provided that all costs associated with the transfer. detention. However.
Social and Cultural Rights. At the President’s direction. since they were found illegally in the territorial waters of Rutasia without following the 13 . In late 2000. the Vienna Convention on the Law of Treaties. The State of Rutasia had every right to apprehend and detain the Migrants from Alfurna. the fact that it lacks the jurisdiction in this matter. Alfurna did not respond to the notice. Both parties have ratified the International Covenant on Civil and Political Rights. Archives and Debts. Rutasia has ratified the Convention on Rights and Duties of States. Rutasia and Alfurna became members of the United Nations in 1945 and 1947. Alfurnans in Finutafu and elsewhere petitioned Alfurna to address the plight of the migrants detained in Rutasia. the International Covenant on Economic. since Article 31 of the Charter of the International Court of Justice stipulates that only state parties may refer matters to the jurisdiction of the Court. Alfurna has also ratified the Vienna Convention on Succession of States in Respect of State Property.within 30 days. On 15 March 2012. which declined to entertain them. SUMMARY OF PLEADINGS The State of Rutasia seeks to respectfully bring to the attention of this Honorable Court. both Alfurna and Rutasia joined in the adoption of the Millennium Declaration by the UN General Assembly. then approximately USD 25 million. and the Protocol Relating to the Status of Refugees. President Millard officially declared that the entire loan balance (approximately USD 50 million) was due and payable. It then issued a communiqué calling on Rutasia to release the migrants from detention. the Provincial Reserve Bank of Lando closed the ARB’s account and transferred the balance. respectively. It further repeated Alfurna’s call for the migrants to be treated with dignity. And Alfurna no longer qualifies as a State party since it does not satisfy the territorial requirement of statehood. The statement noted that the Alfurnan government was in negotiations with Finutafu to arrange for a staged repatriation of all Alfurnans to Nasatima Island. the Convention Relating to the Status of Refugees. to the Rutasian government’s general consolidated fund. and that the government was proceeding to seize Alfurnan property in Rutasia to offset its losses. The Alfurnan government sought discussions with the Rutasian authorities.
PLEADINGS 1. The State of Rutasia had every right to seize the assets of Alfurna.aspx 14 .archives and debts.Alfurna is no longer a state and accordingly lacks jurisdiction over Alfurnas claims. i). an entity is a State when it possesses: 1 http://www. The Honorable Court lacks the jurisdiction to determine the dispute on the seizure of assets from Alfurna since the money in question was part of the climate agreement and it was clearly stipulated how issues concerning the climate agreement shall be solved through the provisions of the contract. Rutasia did not break international Laws since it acted within the confines of its domestic laws. Thus. A state in the oxford online legal dictionary is defined as a Group or groups of people which have acquired international recognition as an independent country and which have a population. since it is not a state party to the Vienna convention on succession of States in respect of State property.recognized procedures under International Refugee Law.duhaime. The treatment of the Migrants from Alfurna at the Woeroma Center is in line with the international obligations of the State of Rutasia and the proposed transfer of the Migrants to the Republic of Saydee is legal and within the confines of international law. Definition and criteria of statehood.1 A more detailed explanation of what constitutes the criteria for statehood is set forth in article 1 (1)of The 1933 Montevideo Convention on the Rights and Duties of States .Under the Montevideo Convention.org/LegalDictionary/S/State. by arbitration. a common language and a defined and distinct territory.
Conceptually. They have 2 Justus Reid Weiner & Diane Morrison. financial constraints that are evident in paragraph 45 have led to collapse of any possible cessation agreement with Finutatu. “in order to say that a state exists and can be recognized as such its territory must have a sufficient constituency…” As such there can be no state without an area of land and equally a “nomad state” cannot exist. The only available recourse for Alfurna after losing their territory was to acquire another territory from another state through cessation.The territory must be adequately recognized and controlled regularly by an entity to qualify for statehood. Preliminarily. the tribunal held that. (3 )a government and (4) the capacity to enter into relations with other states. under the Montevideo convention. a state requires a territorial foundation from which it can assert itself. 15 .J. ii)Loss of statehood through loss of territory via submersion. In paragraph 25 and 32 of the compromise it is clear that the storms and earthquakes have made Alfurna practically inhabitable.Legal implications of ‘safe passage’ Reconciling a viable Palestinian state with Israel’s security requirements. Such an occurrence is unprecedented.22 CONN. (2 )a defined territory.INT’LL. given that a state is in essence a territorial entity 2.246(2007).(1) a permanent population. a sinking state ceases to exist once its permanent territory is no longer inhabitable. Though paragraph 31 shows efforts by Alfurna to cede Nasatima Island. In the case of Deutsche continental Gas-cessels Chaft V Polish state(1929)5 AD. “…the reason for the rule that one of the necessary attributes of a state is that it shall possess territory and that one cannot contemplate a state as a kind of disembodied spirit”.233. Jessup agreed with this criterion and in his arguments submitted in favour of the admission of Israel to the UN and stated that.
divided and in practice hardly able to control even capital. iv. The requirement of government has the following legal effects.permanent population requires that there must be people identifying themselves with the territory no matter how small or large the population is.this requirement is central to a claim for statehood in that all the other criteria depend on it.it is not a rule relating to the nationality of that population. A government or at least some governmental control.4Negatively the lack of a coherent form of government in a given territory militates against that being a state. the people have been displaced to different places and we can conclude that they do not entail a permanent population.As such the grant of nationality is a matter which only states by their municipal law can perform.Legal scholars have since argued that this government did not meet the threshold of an effective government. iii)permanent population Oppenheim defines population as an aggregate of individuals who live together as a community.Nationality is thus dependent on statehood and not vice versa.or be of different colour. The rule is that a state must have a permanent population.A striking modern illustration is that of former Belgium -Congo.The government was bankrupt.though they may belong to different races or creeds or cultures.only managed to lease the Island for 99 years which means Alfurna do not have a permanent Territory. Its however clear that a state is not obliged to extend its nationality to all persons resident in its territory.The continued absence 3 4 16 . In absence of a definite nationality by the individuals and lack of territory where they can lay their loyalty to then we can conclusively say that the criteria for permanent population has failed. As such we can conclude that Alfurna has lost its statehood through loss of territory.is required for qualification as a state.3 After the submersion of Alfurna.)No effective Government. Currently the law is not clear whether if stateless persons enter into a given nation do they acquire that nationality automatically or not.As a criteria for statehood.
They rejected urbanization and technology.)Capacity to Enter Into Relations with Other States .6 This habitual obedience is not evident in Alfurna.”The Recognition of New Governments Instituted by Force”(July 1944)38:3 AJIL 448 at 448.popular support is also required because it is the proper evidence of effectiveness.In paragraph 32.a sufficient degree of stability and the habitual and willing obedience of the bulk of the population. In order to be able to enter into relations with other states the existence of a state and its independence must not be in question.of a government will tend to the dissolution of any state in that area. One can conclusively say that this is not a criterion but is merely a consequence of statehood and one which is not constant but depends on the status and situation of political states.In paragraph 3 of the compromis. the existence of a system of government in. 5 6 Extracted from 2012 Jessup winning competition. CG Fenwick. In addition to this.though they may have a more limited legal personality. 17 .popular support requires the ability to exact habitual obedience.5Thegovernment should not meet open resistance to its authority.At a minimum. Just like in Belgium Congo-the Alfurna government does not meet the criteria of an effective government.and referable to.certain particularly nomadic tribes do not have government in the sense required and so are not states. Positively .its stated that residents of Nullatree Cove area had refused to take part in the emergency migration program because they did not wish to leave their ancestral land.a specific territory indicates without more certain legal status and is in general a precondition for statehood.This was a clear picture that they were constantly disobeying the Alfurna government. v.As such we submit that Alfurna does not have an effective Government.Continuity of government in a territory is one factor determining continuity of the state concerned. its noted that the Nullatree Cove residents lived in isolation from other islanders.a government still needs a reasonable prospect of permanency.we can conclude that it lacks the finances to support its citizens and even cannot provide them with a permanent territory to reside in.
no country is obliged to allow foreigners onto its territory. The legal framework that supports the international refugee protection regime was built by States by acceding to the 1951 Convention relating to the Status of refugees and the protocol relating to the status of refugees.Alfurna is no longer a state after submersion of its territory and as such has no capacity to enter into relations with other states. If a country accepts to host illegal migrants. then they have an obligation to conform to the rules of the host state. We wish to submit on the onset our strong rejection of the notion that Alfurna is a state . Countries that once generously opened their doors to refugees have been tempted to shut those 18 . As a general rule. It is one of the elements of state sovereignty that a country may decide if and how it will permit non-citizens to enter. some worrying trends have begun to emerge. The rules must be the same as those applied to aliens in that country.”. Article 34 of the statute of International court of Justice explicitly states that “only states may be parties in cases before this court. vi. in recent years. While the international community has generally responded swiftly and generously to refugee crises over the past half century.)Competence of the court. b).Rutasia has not violated international law in its treatment of migrants from Alfurna.As such it lacks the locus standi to institute an action before this honourable court and consequently the court lacks jurisdiction to entertain this case.
Rutasia has shown goodwill by accepting the migrants from Alfuna. Scholars have argued that the migrants should be discriminated against the locals in what they call "preservation of the state's limited resources for the education of its lawful residents. The action complained of the exclusion of plaintiff children from the public schools of the Tyler Independent School District. In light of the Alfurna case.In any way the government of Alfuna is in an awkward position to put forth such a claim as it has failed to provide social and basic needs to its citizens.Apart from being denied freedom of movement(which is explained below)the migrants have been accorded all the other rights and so the Alfuna Government has no case to complain in this respect. who could not establish that they had been legally admitted into the United States. Plyler v. The following case shows how host states are struggling to provide all the needs of migrants and at the same time show that Rutasia has not violated any international law in treatment of the migrants. filed in the United States District Court for the Eastern District of Texas in September.doors for fear of assuming open-ended responsibilities. of abetting uncontrolled migration and people-smuggling. Doe This is a class action. and concerned that resources are not being sufficiently focused on those in greatest need. on behalf of certain school-age children of Mexican origin residing in Smith County. 1977. As such dictating that immigrants must follow international laws as opposed to the national laws of the host country may hinder countries from accepting refugees in future. The Superintendent and members of the Board of Trustees of the 19 .” Real and perceived abuses of asylum systems as well as irregular movements. Infact the Rutasian Government is offering more services to the migrants than the Alfuna Government is able to offer. have also made some countries more wary of refugee claimants. Refugees have been refused admission to safety or have been expelled from asylum countries. or of jeopardizing national security. Tex. If we are to encourage states to accept and host refugees we must allow them to be governed by the rules of the host country unless it is dehumanizing or goes against accepted public morality.. Those who have reached a potential country of asylum have sometimes been turned away or sent back without being able to apply for asylum.
cornell.. These cases portray a worrying trend that might frighten states from accepting migrants. 337. Gordon. Rodriguez.S. 350 (1938). Gaines v.S. 305 U. Texas. Weber v. Missouri ex rel. 406 U. Canada. 411 U. 770 (1977).S. Aetna Casualty & Surety Co. 310 U. 20 . 412. v. Trimble v. In December. 253 U. 762. F.School District were named as defendants. Royster Guano Co. 1. the State of Texas intervened as a party-defendant.edu/supct/html/historics/USSC_CR_0457_0202_ZO. the District Court preliminarily enjoined defendants from denying a free education to members of the plaintiff class. 262 U. the court conducted an extensive hearing on plaintiffs' motion for permanent injunctive relief. 175 (1972) Meyer v. v. 415 (1920). 430 U.S. San Antonio Independent School Dist.S.S. 7 http://www. 164. 400 (1923). 147 (1940).html#457_US_202 n2 accessed on 13/11/2012.S. 390. Virginia. 1977.7 Even though the court of appeal finally ruled that the children had to be afforded education the case serves to show how the host states are finding it difficult to provide all the requirements of the refugees. Tigner v.law. S. 35 (1973). Nebraska. 141.Other cases that have been instituted by states that feel that the host countries have violated international law in treatment of its migrants include(without giving the facts). After certifying a class consisting of all undocumented school-age children of Mexican origin residing within the School District.
has committed a serious nonpolitical crime outside the country of refuge prior to admission to that country as a refugee.c)Alfurnan migrants held in Woeroma centre are being treated in accordance with Rutasia’s obligations under international law and the proposed transfer to Saydee is legal. Some of the migrants from Alfurna fall under this category Article 3 of the convention relating to status of refugees provides that the contracting state shall apply the provisions of this convention to refugees without discrimination as to race. Equally no penalty has been imposed on the unlawful migrants of Alfurna.a person does not deserve international protection if there are serious reasons for considering that the person has committed a crime against peace.a war crime or a crime against humanity. the contacting states. this right was granted in paragraph 43 when ILSA instituted a case representing the refugees. 21 . Rutasia has provided the only available housing to the refugees as required by the convention.To this extent the state of Rutasia has not discriminated against these migrants Article 16 of the same convention provides that a refugee shall have free access to the courts of law on the territory of all contracting states. in so far as the matter is regulated by laws or regulations or is subject to the control of public authorities.or that he/she has been guilty of acts contrary to the purposes and principles of the United Nations. shall accord to refugees lawfully staying in their territory treatment as favourable as possible and in any event not less favourable than that accorded to aliens generally in the same circumstances.religion or country of origin. Article 31 provides that no penalties shall be imposed on the refugees on account of their illegal entry. Article 21 provides that as regards to housing.As per Article 1 F of the refugee status convention. Countries are under no obligation to protect people who do not deserve international protection. They were against the proposed transfer of the refugees to Saydee.
Mr. but argued that the Migration Act required they be held in immigration detention in the mean-time. the Federal Court and the Full 22 . AHMED ALI AL-KATEB v PHILIPPA GODWIN. the Refugee Review Tribunal. Article 33 (2) however provides that this provision may not be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he has been convicted by a final judgement of a particular serious crime. could continue to be held in immigration detention indefinitely. Al-Kateb. All the state is doing is trying to transfer them to a place where they will have better facilities and the transfer is in good faith. The Federal Government has been unable to reach arrangements with other countries to take them. The following case serves to show that detention of illegal migrants is allowed and that Rutasia has not violated international laws. His application was dismissed by the department.Paragraph38 categorically states that Rutasia only contacted Saydee because it could no longer accommodate the housing requests of the migrants. despite their wish to leave Australia.Paragraph 37 states that an earthquake caused cracking in the walls of Woerema centre. regardless of whether such an arrangement could ever be reached. Both cases involve asylum seekers who had asked to be returned to the Middle East. Again reference is made to paragraph 32 of the compromis which tells us that among the refugees some have serious criminal records making their expulsion to conform with international laws. is a stateless Palestinian who was born and lived most of his life in Kuwait.Article 33 prohibits expulsion or refoument. He arrived in Australia in December 2000 and applied for a protection visa. In any way it is universally accepted that necessity is enough ground to negate the provision of non-expulsion in article 33. The High Court of Australia held that unsuccessful asylum seekers who could not be removed to another country. 28.
is an Iraqi national who fled with his family to Syria in 1980. The High Court. 23 . the High Court ordered that both cases be removed into this Court to be heard together. Al Khafaji’s. Article 8 of the convention defines state property of the predecessor state as property.Rutasia’s conduct in respect of Alfurna’s assets is consistent with international law. detention must continue until an unlawful non-citizen is either removed from Australia. However we must state ab initio that the state of Rutasia has not ratified this convention. His application for a protection visa was unsuccessful and he asked to return to Syria. The majority held that as a purpose of detention was the eventual removal of unlawful non-citizens the detention was not prohibited by the Constitution. Under the Act. Al Kateb’s release in April 2003. on application from the federal Attorney-General. In February 2003 he initiated action in the Federal Court claiming he was being unlawfully detained. Mr. d). archives and debts. Justice John Mansfield ordered Mr. deported or granted a visa. held that Migration Act provisions requiring the continued Detent on of unlawful non-citizens are not invalid.Court of the Federal Court. owned by that state. The issue of seize of state assets should be guided by the Vienna convention on succession of States in respect of State property. The Minister appealed to the Full Court. Mr. The Court held that although there was no likelihood of removal in the reasonably foreseeable future. by a 4-3 majority. The Federal Court ordered his release from detention as there was no real prospect of removal in the reasonably foreseeable future. He arrived in Australia in January 2000. he was not unlawfully detained. rights and interests which at the date of the succession of states were according to the internal law of the predecessor state. the Court dismissed Mr. As such we wish to state that our reference to the convention is without prejudice to Rutasia’s contention that the provisions of the convention are not binding in this case. Accordingly. AlKateb’s appeal and allowed the Minister’s appeal in Mr Al Khafaji’s case. 31. Al-Kateb then told the department he wished to leave Australia and be sent to either Kuwait or Gaza. pending an appeal. In August 2003.
This led to the president of Rutasia declaring that the entire loan balance was due and payable. with the interest accrued to that point shall be treated as due and owing. Once the debtor is informed of the default and fails to cure it within an additional 30 days. an international organization or any other subject of international law. It is not in dispute that the climate loan agreement was executed on 5th June 1992 while the full amount was disbursed by RICA into Alfurna’s bank of Lando account between 1992 and 1997. Dreyfus frères et al.” Alfurna after being notified of the default failed or neglected to reply or rectify the default. The action presented complicated issues between two parties to whom the Peruvian authorities had at different times granted monopoly concessions of guano. up to the amount of the then-current indebtedness. without further notice and without further without the need for any judicial authorization. the entire principle balance of the loan. Peruvian Guano Company c.The state of Rutasia in accordance with the agreements terms put Alfurna on notice on 10th February 2012 that it had been in default under the negotiated loan agreement for over a year and demanded that Alfurna must remedy the default within thirty days. The main question was the right of both concessionaries to seize a cargo of guano claimed by each as its 24 . “the failure of the debtor to make a scheduled payment within 30 days of the date on which it is due shall constitute a default under the loan agreement. This seizure was in accordance with the climate change agreement. To be precise the climate change provides. However the state of Alfurna ignored this demand.Article 33 defines state debt as any financial obligation of a predecessor state arising in conformity with international law towards another state. The creditor may at its election seize for its own account any collateral or other property of the debtor subject to its control. The provincial Reserve Bank of Lando then closed the ARB’s account and transferred the balance to Rutasian government. As such the state of Rutasia had the right to seize Alfurna’s property in accordance with the climate agreement. It is our humble submission that the issue of seizure of state property should be dealt with in reference to contract law.
property. Robert howse no. 8 The same was buttressed in the following case which is quite similar to the Alfurna case. On August 10. Such debts are. the Court of Appeal at Brussels13 delivered a judgment which decided on previous rulings by the Civil and Commercial Tribunals. The Court recognized and upheld this assertion.org/wiki/Odious_debt 9 the concept of odious debt in public international law prof. 185 july 2007 25 . considered by this doctrine to be personal debts of the regime that incurred them and not debts of the state. an odious debt is a legal theory that holds that the national debt incurred by a regime for purposes that do not serve the best interests of the nation should not be enforceable. the defendants. 1880. Norway’s ship export debt 9 8 http://en. in an action in which the attaching company sued for the payment of damages for the non-execution of a contract entered into with a representative of the Turkish Government for certain supplies and labour. The tribunal ruled against the Turkish Government. Dreyfus Brothers. Sclessin.wikipedia. We also submit that the state debt owed to Rutasia was not an odious debt and as such the contract must be enforced. claimed that they had the right to seize the guano because the guano cargo was an agreed method of repayment of a debt contracted by the Peruvian Government. The attachment was provisional pending the appeal brought by the Turkish Government to the Civil Tribunal for a judgment which would declare the attachment null and void. thus. Before the Court of Appeal.8 the Civil A Tribunal at Antwerp was called upon to decide over the validity of a seizure of certain Krupp cannons belonging to the Ottoman Government on their way to Turkey. Government of Ottomanv v. In international law. or would enable the attaching company to transform it into a levy of execution. The action was brought by the Turkish Government for the purpose of vacating the attachment authorized by the president of the Commercial Tribunal of Antwerp.
when loans from creditors had been expressly designed to prevent union with Germany. 1982: 63–64). the Government of Norway in 2006 determined that obligations arising out of lending to certain developing countries as part of the Ship Export Campaign of 1976–1980. To no avail. This is not an example of “odious debt” and indeed the Government stressed that the debt was not “illegitimate”.The court lacks jurisdiction to entertain this matter. the Americans tried to argue that much of the debt had been used for the purchase of food. “Any dispute arising under the climate change Loan Agreement is to be submitted to binding arbitration under the rules of international chamber of commerce. The court has no jurisdiction to entertain the issue of seizure of assets by the state of Rutasia. and guaranteed through the Norwegian Institute for Export Credits. This is in conformity with the terms of the climate agreement where it is clearly stipulated how issues concerning the climate agreement shall be solved. should be cancelled on grounds that Norway ought to share responsibility with the debtor countries for the failure of the programme as a development policy. citing prior American and British practice and arguing that it was contracted against the interests of the Austrian people (Hoeflich. in Contemporary Practice of Public International 26 . all contracts for the 10 Watson G (1997). German repudiation of Austrian debts – 1938 10 The Government Austria was heavily indebted to foreign creditors at the time of the German annexation of Austria in 1938. But the notion of co-responsibility exemplified by the unilateral and unconditional cancellation of these debts on 2 March 2007 does reflect the idea that repayment may be subject to broader considerations of the equities of the debtor–creditor relationship. the Alfurna case must be distinguished or rather contrasted with the following case. To be precise the contract provides. Germany repudiated the debt.After an evaluation. The Law of State Succession. given what were determined to be inadequate needs analyses and risk assessments. b). Moreover. However.
Conclusion/Prayer for Relief The State of Rutasia humbly requests the Court to adjudge and declare that: Alfurna is no longer a state. C. p. Boston College Third World Law JournalVolume 6Issue 2 Article 26-1-1986The Succession of States and the Problem of StateDebtsP. and accordingly the Court lacks jurisdiction over Alfurna’s claims. 1996.J. Menon 27 . 2. 111. 'International law and the preemptive use of force: Afghanistan.procurement of goods and services as part of the Alfurna climate change Remediation project shall include similar arbitration provisions. Greenwood. –– “Why Can't a Country Be Like a Firm”.” As such any dispute regarding the climate shall be settled via arbitration. and Iraq' (2003) 4 San Diego Int'l L. Al Qaida. 3. K. 1995. Alfurna is foreclosed from making claims with respect to those individuals because of its failure to take availableaffirmative steps to protect them. REFERENCES 1. “Sovereign Debt in the Dock”. The Alfurnan migrants held in the Woeroma Centre are being treated in accordance with Rutasia’s obligations under international law. and Rutasia’s conduct in respect of Alfurna’s assets is also consistent with international law. in any event. universite de geneve institut universitaire de hautes etudes internationales the legal practice of the recovery of state external debts(2001) . 88-89. and their proposed transfer to Saydee is legal. 7.. February 17th-23rd. THE ECONOMIST. pp. April 22nd-28th. and in any event: Rutasia has not violated international law in its treatment of the migrants from(former) Alfurna and. 4.
Mancina EF (2004). MacMillan R (1995). 9. 17 N. 15. 6 Int’l L. History May Not be Distorted.pdf. 16 J. Leiden. Mimeograph: 85–87. Int’l L.: 57. Int’l L.U. in Fifty Years is enough: The Case against the World Bank and the International Monetary Fund. Social and Cultural Rights. Reports. 16. 36 Geo. 1295. UNESCOR. August.un.org/Depts/los/convention_agreements/texts/koh_english.. The doctrine of odious debts. Reinisch. Moore JB (1906). 19 INT'L & COMPo L. L. L. and Comp. Q. Ji Chonwei. In 1 John Bassett Moore. Nov. 11.: 273.5.1995. PEOPLES DAILY.. Brownlie. The repudiation of ultra vires state contracts and the international responsibility of States.Y. 7. The Doctrine of Odious Debts.. 284-316. University of 12. 10. http://www.. 21: Right of everyone to take part in cultural life. Wash. 43rd Sess. Principles.the criteria for statehood in international law·by james crawford 1977 13. 6 at pp. Rev. ENVTL. Meron T (1957). 28 . Q. 1239. UN Doc E/C12/GC/21 (2009Eric Biber. 1966. On public debts. 398-423 (1970). 1298-99 (2009) (discussing the backlash to climate change policies because the effects of climate change are “delayed harm”). Comment No. 578-80 and works there cited 14. Sinners in the hands of an angry God: Resurrecting the odious debt doctrine in international law. A. p. Bus. Majot J (1994).J. 1. Climate Change and Backlash. 8. State Succession: International Relations and Internal Law. the Netherlands. Moore’s Digest of International Law 97: Abrahams CP (2000). at 5 Committee on Economic. 6. 'Developing human rights and humanitarian law accountability of the Security Council for the imposition of economic sanctions' (2001) 95 AJIL 851. The new Latin American debt regime: Towards a sovereign debt work-out system. pp.
309. Palestine During the Interim Period. peter malanczuk. 20.cia. 25.D. 24. . World Factbook. 14-15 (1929)). 26 DENV.gov/library/publications/the-world-factbook/geos/mv. 82 (1997). 8. Maldives.cia. World Factbook. CRAWFORD. CENTRAL INTELLIGENCE AGENCY. https://www. 2011). Dajani. . Maldives. 18. 2011). Omar M. Stalled Between Seasons: The International Legal Status of 23.gov/library/publications/the-world-factbook/geos/mv. https://www. J. Polish State. 5.html (last visited Feb. See generally Tsaltas et al. akehurst’s modern introduction to international law 76 (1997).. 29 .html (last visited Feb. 19. at 38 (quoting Duetsche Continental Gas-Gessellschaft v. 22. No. supra note 77.17. INT’L L. 5 A. 8. CENTRAL INTELLIGENCE AGENCY. at 15-17 (advocating for an expansion of the legal regime of artificial islands to resolve climate change issues. & POL’Y 27. 21. supra note 27.