Arrepy v.

Resthel Bench Memorandum

PURPOSE OF THE BENCH MEMORANDUM

The Purpose of the Bench Memorandum is to provide judges in the ILS Cup with basic
factual and legal information to enable evaluation of the written and oral performances of
participating teams. This Bench Memorandum should be read in conjunction with the 2019 ILS
Cup Problem (the “Compromis”).

The Compromis was designed to present the competitors with a balanced problem such
that each side has both strengths and weaknesses. ILS teams should be able to construct good
arguments as both the applicant and as the respondent. As a judge, your task is to evaluate the
quality of each team’s analysis, their knowledge of international law and their advocacy skills.
Please make sure not to confuse this task with your own personal evaluation of the merits of the
case.

Please note that this memorandum is not meant to be an exhaustive treatise on the legal
issues raised in the Compromis. In particular, Judges should be aware that this Bench
Memorandum has been condensed as much as possible, and does not purport to cover all relevant
issues in detail. In many instances, relevant case law is not discussed, and should be addressed by
the participants. The state practice and legal authorities cited herein are illustrative and not
intended to be a comprehensive review of all relevant sources of law. As such, judges should not
be surprised when participants present arguments or authorities which are not discussed in this
memorandum. This does not suggest that such arguments are not relevant or credible.

I. SUMMARY OF THE CASE

The only shared boundary between Arrepy and Resthel is the El Caiman River and the
bridges over the river are the most convenient manner of travelling between the two territories. A
roundabout overland trip across other neighboring states and territories is possible but
prohibitively expensive and cumbersome.

The parties to the case have historically close ties. Resthel used to be a continental empire
while Arrepy was one of its imperial territories. However, relations between the two have always
been cordial and free movement of persons and trade goods across the El Caiman River was
enjoyed for several generations.

Free movement of persons across the river has been particularly crucial for the citizens of
Arrepy whose majority of citizens are adherents of the Lathan faith. The major Holy Sites of the
Lathan faith are found mostly in Resthel. First, Lathan faithful are required to undertake 2 personal
pilgrimages during their lifetime to Tevazu Sanctuary in Resthel. Second, Lathans celebrate a
yearly Spring Festival in September which involve the procession of the Diente Sagrado (Holy
Tooth), a holy relic, from the El Caiman River to the Tevazu Sanctuary. Although the personal
pilgrimages may be done at any time during the year, most Lathans coincide their personal
pilgrimage with the Spring Festival making it a doubly significant event religiously. It is estimated
that an average of 180,000 Arrepyans travel to Resthel yearly to either perform the pilgrimage or
to participate in the Spring Festival. Resthel thus benefits from the religious activities of the Lathan
faithful as religious tourism brings them an estimated annual income of US$15 Million dollars.

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Arrepy v. Resthel Bench Memorandum

Similarly, the free movement of goods between the two states has been a boon to their
respective economies which have become interdependent. Arrepy has become a major source of
food, agricultural products, and raw materials required by the Resthelian population and
manufacturing industry. Resthel has conversely become Arrepy’s primary trading party.

There was an attempt to codify their economic and border relations into a treaty called the
1941 Pellegrino Concordat but the Resthelian head of state has refused to ratify the text signed by
the Resthelian government. Nevertheless, most of its provisions providing for a customs union
(similar to that between Switzerland and Lichtenstein) and free movement of persons have been
observed by both sides.

The crux of the controversy between the parties arose in the early 1990s with the rise of
the opium poppy growing industry in Arrepy to the extent that the industries engaged in the
production, trade, and export of poppy supported almost 40% of Arrepy’s GDP. Poppy bulbs in
themselves are not dangerous. They are the source of naturally occurring compounds used to
synthesize popular medical anesthetics like morphine. Poppy-based medicines are produced by
both Arrepyan and Resthelian pharmaceutical companies alike. However, the oils extracted from
poppy bulbs may also be used to make addictive hallucinogenic substances such as Euphoria.
Euphoria is similar to heroin and is mostly produced within Resthel. In the 1990s and early 2000s,
addiction to Euphoria became a national crisis in Resthel.

As it was estimated that almost 80% of poppy produced in Arrepy end up in Resthel. In an
attempt to combat the proliferation of Euphoria, the Resthelian government sought to regulate the
movement of poppy across the El Caiman River. It passed several statutes which sought to disable
Euphoria producers by stifling their supply of raw materials. However, the terms of the domestic
laws are contrary to the terms of the Pellegrino Concordat. Moreover, the administration of the
domestic laws has given rise to allegations of corruption, abuse, and human rights violations, as
well as violation of cultural property rights.

On August 2017, the Diente Sagrado and other religious items being transported by Lathan
holy men to Resthel ahead of the Spring Festival were confiscated when they were found among
items being used to illegal smuggle poppy bulbs. The Resthelian trial courts found the arrested
Arrepyans guilty of smuggling on the basis of the testimony of accused-turned-State-witnesses
who admitted to smuggling. On the other hand, an independent board of inquiry constituted in
Resthel did not find any evidence of corruption, abuse, or human rights violations, or religious
discrimination at the ports and bridges of Resthel.

II. LEGAL ANALYSIS

The Compromis raises three (3) primary issues: (1) domestic law vis-à-vis treaty
obligation, (2) human rights, particularly right to free exercise of religion and freedom of
movement and (3) protection of cultural property.

The first and second issues are closely related as both are concerned with the validity of
domestic law in relation to the Pelligrino Concordat as well as other international law instruments,

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Arrepy v. Resthel Bench Memorandum

particularly those pertaining to human rights. The second issue simply adds the acts of government
police and customs agents in the administration of such laws and how the same are allegedly in
contravention of human rights.

FIRST ISSUE:
Validity of a Domestic Law based on Applicable International law

Arrepy’s Prayer for Relief Resthel’s Prayer for Relief

The Expanded Anti-Euphoria Act and the
Customs and River Bridges Act are illegal for
being contrary to Resthel’s international
obligations under the 1945 Pelligrino
Concordat
The Customs and River Bridges Act and the
Expanded Anti-Euphoria Act are in
consonance with Resthel’s obligations under
the 1945 Pelligrino Concordat

A. QUESTION 1: Applicability and Effectivity of the Pelligrino Concordat

Both Applicant and Respondent are expected to argue on the extent and enforceability of
the obligations of Resthel under the Pelligrino Concordat. Discussions may focus on
(1) the provisions of the Vienna Convention of the Law on Treaties on consent to be bound
by a treaty, or lack thereof;
(2) that states may be bound to a treaty to the extent that they have implicitly consented
and enjoyed rights thereto (Free Zones of Upper Savoy case1; Territorial Jurisdiction
of the International Commission of the River Oder2)
(3) the binding force of local customary law between states (North Sea Continental Shelf
Case; Right of Passage over Indian Territory Case);
(4) general principles of law such as pacta sund servanda and the principles found in
Article 2 of the UN Charter.

B. QUESTION 2: Expanded Anti-Euphoria Act of 2015

The applicant side is expected to argue that the EAEA, particularly the imposition of a
trade quota, is a disguised quantitative restriction which is prohibited by Article 7 of the Pelligrino
Concordat and that none of exceptions in Article 17 exists in the present case. Agent for the
applicant may also invoke the employment implications and economic impact of the trade
restrictions brought about by the EAEA.

Agents for the respondent may cite that the “debauched behavior” brought about by
excessive consumption of Euphoria justifies the imposition of a trade limit. The same may fall
under grounds of public morality or the protection of health and life of humans. Further, the trade
restriction is non-discriminatory as both Arrepy and Resthel companies are reliant on opium
poppy. Thus, the economic impact of the restriction in opium trade is felt in both states albeit
greater in Arrepy.
1
PCIJ (1932) Series A/B No. 46, p. 141;
2
PCIJ (1929) Series A, No. 23, p. 19-22

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Arrepy v. Resthel Bench Memorandum

C. QUESTION 3: Customs and River Bridges Act

Agents for the applicant may anchor their arguments on the fact that Resthel enacted the
CURB Act without prior consultation with Arrepy in violation of Article 6 of the Pelligrino
Concordat which states that the parties shall assist each other in customs matters.

The respondent may use arguments based on a state’s sovereign prerogative to enact
domestic laws without undue interference from other states or international bodies. They may also
use arguments based on conventional and customary law on treaties pertinent to the right of states
to suspend or terminate treaty obligations.

SECOND ISSUE:
Human Rights Violations

Before proceeding to discuss on the corresponding violations, agents are expected to give
a brief discussion on standing to raise human rights violations.

Arrepy’s Prayer for Relief Resthel’s Prayer for Relief

The official acts of Resthelian customs and
police agents which restrain or discourage the
Grand Pilgrimage of Cleansing made by
Arrepyan nationals who are practitioners of the
Lathan faith violate the right to free exercise of
religion, and freedom of movement.
The acts of Resthelian customs and police
agents do not restrain or discourage the Grand
Pilgrimage Cleansing.
In the alternative, the restriction is in
consonance with the right of the state to protect
itself and its citizens

A. QUESTION 1: Freedom of Religion

Article 18 of the ICCPR states:

1. Everyone shall have the right to freedom of thought, conscience and religion. This right
shall include freedom to have or to adopt a religion or belief of his choice, and freedom,
either individually or in community with others and in public or private, to manifest his
religion or belief in worship, observance, practice and teaching.

3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as
are prescribed by law and are necessary to protect public safety, order, health, or morals
or the fundamental rights and freedoms of others.3

3 American Convention on Human Rights, Nov. 22, 1969, art. 12, 9 I.L.M. 63 (entered into force
July 18, 1978), African [Banjul] Charter on Human and Peoples' Rights, June 27, 1981, art. 8, 82 I.L.M. 58
(1981) (entered into force Oct. 21, 1986), Declaration on the Elimination of All Forms of Intolerance and of
Discrimination Based on Religion or Belief, G.A. Res. 36155. U.N., 36th Sess., 73rd plen. mtg. GAOR Supp.
No. 51, at 171, art. 1 U.N. Doec. A/36/51 (1981),

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Arrepy v. Resthel Bench Memorandum

1. For the Agent

Agent for the applicant is expected to argue that the CURB Act, in limiting the right
to access places of worship, imposes an undue restriction on the right of the Lathan faithful
to practice their religion. Agents may cite Office of the High Commissioner of Human
Rights Document E/CN.4/2005/61 which states that “xxx places of worship are an essential
element of the manifestation of the right to freedom of religion or belief to the extent that
the great majority of religious communities or communities of belief need the existence of
a place of worship where their members can manifest their faith.”4 Applicants may also
invoke the case of Association for Solidarity with Jehovah’s Witnesses and Others vs.
Turkey, wherein the Court found that “the congregations in question were unable to obtain
an appropriate place in which to worship on a regular basis, which amounted to such a
direct interference with their freedom of religion [that was] neither proportionate x x x nor
necessary in a democratic society.”5 Hence, the domestic law contravenes the ICCPR
provision on freedom to manifest one’s religion.

Applicant may also anchor their arguments on the fact that the right to pilgrimage
is an essential element of the right to freedom of thought, conscience, and religion.
International Organizations also exerted efforts to recognize the right to make pilgrimage
to religious shrines. Due to the central role that pilgrimage plays in most of the world's
religions, it is important to recognize that national and international pilgrimage must be
protected under international human rights law.6

Applicant may likewise rely on Human Rights Committee General Comment No.
22 on the ICCPR which states that restrictions on Article 18 rights are not allowed on
grounds not specified therein, even if they would be allowed as restrictions to other rights
protected in the Covenant. Limitations may be applied only for those purposes for which
they were prescribed and must be directly related and proportionate to the specific need on
which they are predicated. Restrictions may not be imposed for discriminatory purposes or
applied in a discriminatory manner.7

The applicant may also cite the specific acts of the special task force such as
humiliating body searches, planting of evidence, and social media bullying as an
infringement of their right to religion. To add, the report by the Drug Intelligence Board
which prompted the establishment of special joint task force may be perceived as self-
serving. Respondent may invoke state immunity in this regard or in the alternative, that the
cause of action of the Lathan devotees are against the erring officers no Resthel.

4 E/CN.4/2005/61, par. 50.

5 Association for Solidarity with Jehovah’s Witnesses and Others vs. Turkey, ECHR 168 (2016) 24.05.2016
6 Pilgrimage to Religious Shrines: An Essential Element in the Human Right to Freedom of Thought,

Conscience, and Religion by Peter Mason (Case Western Reserve Journal of International Law, 1993)
7 Human Rights Committee General Comment No. 22, par. 8

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Arrepy v. Resthel Bench Memorandum

2. For the Respondent

For the respondent, agents are expected to argue that the CURB Act constitutes a
reasonable limitation which is permitted under Article 18(3) of the ICCPR. However, any
limitation must be based on the grounds of (1) public safety, (2) public order, (3) public
health, (4) public morals, or (5) protection of the fundamental rights and freedoms of
others. The burden is incumbent upon the respondent to prove that the restriction passes
the two-pronged test under international law, to wit: (a) it must be determined by law8 and
(b) limitations must be necessary or justified under the cited exceptions. 9 Agents for the
respondent now has to identify which among the exceptions does the circumstances of the
present case fall into.

The limitation, in addition to being pursued for a legitimate aim, must be

proportionate to that aim10 and must not diminish the status of the right as a human right in
any way.11 Agents may cite Cha’are Shalom ve Tsedek vs. France12 wherein the Court held
that there would only have been an interference of the right to freedom to manifest its
religion if the restriction “had made it impossible for ultra-orthodox Jews to eat meat from
animals slaughtered in accordance with the religious prescriptions they considered
applicable.” Accordingly, the restrictions imposed by the Resthelian government did not
render pilgrimage of Lathans impossible, the law simply imposed an additional burden
which is both necessary and reasonable given the prevailing circumstances.

Agents for the respondent may also argue on the basis of a state’s right to control
its borders.13 Agents may cite state practice as basis for the restrictions imposed by
Resthelian authorities. Saudi Arabia has also developed a long-standing relationship with
Egypt concerning the annual Hajj. Egyptian pilgrims seeking to make the pilgrimage to
Mecca are carefully screened and processed by Egyptian officials in order to comply with
requirements imposed by the Saudi Government."14

Agents of the respondent may also argue on the truth and factual basis of the
allegations of corruption and abuse as they are based on unconfirmed reports and biased or
amateur sources. They may cite countervailing facts agreed upon by the Parties through
the Compromis.

8 Universal Declaration of Human Rights, art. 29(2) ("everyone shall be subject only to such limitations as
are determined by law…); Declaration on Elimination of Intolerance, art. 1(3) ("Freedom to manifest one's
religion or belief may be subject only to such limitations as are prescribed by law").
9 Article One of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based

on Religion or Belief states that, "are necessary to protect public safety, order, health or morals or the
fundamental rights and freedoms of others."
10 Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil

and Political Rights, E/CN.4/1985/4, Annex, para. 10

11 John Langan, Defining Human Rights: A Revision of the Liberal Tradition, in Human Rights in the

Americas: The Struggle for Consensus, pp.69, 70-72

12 Cha’are Shalom ve Tsedek vs. France, ECHR, Judgment, June 27, 2000.
13 United States vs. Martinez-Fuerte 428 U.S. 543, 566 (1976).
14 Supra, note 5 citing Iraqi Pilgrims to Leave for Saudi Arabia, Xinhua General Overseas News Service,

June 5, 1991; Juan E. Campo, The Mecca Pilgrimage in the Formation of Islam in Modern Egypt, in Sacred
Places and Profane Spaces, 145, 146 (Jamie Scott & Paul Simpson-Housley eds., 1991)

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Arrepy v. Resthel Bench Memorandum

B. QUESTION 2: Freedom of Movement

Article 12 of the ICCPR states:

1. Everyone lawfully within the territory of a State shall, within that territory, have the
right to liberty of movement and freedom to choose his residence.

2. Everyone shall be free to leave any country, including his own.

3. The above-mentioned rights shall not be subject to any restrictions except those which
are provided by law, are necessary to protect national security, public order (ordre public),
public health or morals or the rights and freedoms of others, and are consistent with the
other rights recognized in the present Covenant.

In the same manner as the right to manifest religion under Article 18, with respect to Article
12, HRC General Comment No. 27 states that “to be permissible, restrictions must be provided by
law, must be necessary in a democratic society for the protection of these purposes and must be
consistent with all other rights recognized in the Covenant.”

The applicant is expected to argue that the intensified customs screening accompanying
the enactment of the CURB Act imposed an undue burden on the Arrepyan pilgrims. This burden
may be considered to violate Article 12 of the ICCPR and even Article 21 and 22 of the Pelligrino
Concordat.

The respondent, on the other hand, may argue that both the EAEA and the CURB Act are
not laws which seeks to restrict freedom of movement. Further, the incidental effect on the
pilgrimage is but a necessary consequence of the reported incidents of illegal importation of drugs.
In addition, there are still 85,000 Arrepyans who were able to participate in the pilgrimage in 2016.
Respondent may even argue that the target of the CURB Act is not the individual but the items in
his possession thus, the stricter customs screening does not constitute a violation of the freedom
of movement.

THIRD ISSUE:
Cultural Property

Arrepy’s Prayer for Relief Resthel’s Prayer for Relief

Resthel must immediately return the Diente Resthel has no obligation to return the Diente
Sagrado to Arrepy, its lawful owner. Sagrado to Arrepy.

A threshold issue is the extent of Resthel’s obligations as it is yet to ratify the 1970
UNESCO Convention. Art. 19 of the UNESCO Convention further provides a one-time deposit of
an instrument of ratification process which is yet to be complied by Resthel. Applicant may invoke
Art. 16 of the Vienna Convention on the Law of Treaties including the case of Free Zones of Upper

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Arrepy v. Resthel Bench Memorandum

Savoy15 and the Territorial Jurisdiction of the International Commission of the River Oder16 where
the PCIJ rules that states shall be bound to treaties to the extent of their consent (express or implicit)
and enjoyment of rights under the terms thereof.

Arrepy must then establish that the Diente Sagrado falls within the coverage of the 1970
Convention. It must be noted that there are Lathan devotees in Arrepy’s neighboring states
including Resthel. Hence, the respondent may argue that the Diente Sagrado is not the exclusive
cultural property of Arrepy. Resthel may even proceed to claim that the ownership of the Diente
Sagrado belongs to the Lathan believers. Arrepy may counter by stating that Lathans are
considered a sub-group within Arrepy thus the latter is the proper custodial body of the Diente
Sagrado. This argument finds support in Central Museum of Tavrida vs. University of
Amsterdam.17

Arrepy must insist that Resthel is illegally withholding possession of the Diente Sagrado
as Sec. 35 of the EAEA excludes confiscation and forfeiture of properties belonging to a third
person not liable for the unlawful act. This, in effect, means that Resthel contravenes its own
domestic law. Resthel may argue that the Diente Sagrado does not belong to Arrepy but to Lathan
devotees which is comprised of not only Arrepyans but also other nationals from neighboring
states.

Resthel may further resist the return of the Diente Sagrado by invoking Chapter III, Article
5 of the 1995 UNIDROIT Convention which states that A Contracting State may request the court
or other competent authority of another Contracting State to order the return of a cultural object
illegally exported from the territory of the requesting State. Thus, the ICJ has no jurisdiction.
Arrepy has to provide basis that the Diente Sagrado is not an illegal exported cultural object.
Agents for the respondent must state that the fact that the Diente Sagrado was used in the
commission of an offense, the same becomes an illegally exported cultural object.

15 PCIJ (1932) Series A/B No. 46, p. 141;

16 PCIJ (1929) Series A, No. 23, p. 19-22.
17 No. C/13/577586/HA ZA 14-1179, 14 Dec. 2016

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