12th World Human Rights Moot Court

Competition

7-11 December 2020

Geneva, Switzerland

IN THE MATTER BETWEEN

MEDICOS DE CARIDADE (MDC)

AND

UNITED PERRIGMA

MEMORIAL FOR THE RESPONDENT

 Table of Contents

List of abbreviations...........................................................................................................3

Index of Authorities............................................................................................................5

Summary of Fact.............................................................................................................22

Summary of Argument.....................................................................................................25

Preliminary Issues...........................................................................................................26

A. Jurisdiction.............................................................................................................26

B. Admissibility...........................................................................................................26

I. The cases within the territory in IP is inadmissible................................................26

Merits of Claims...............................................................................................................28

a. Federal Law on Pesticides....................................................................................28

I. FLP safeguards the right to life of both present and future generation by

measures to conserve the environment..........................................................................28

II. UP considers obligation to prevent harmful act of non-state actors..................29

b. Federal Law on Blindness (FLB)...........................................................................30

I. FLB ensures recognition of best interest of children and utilizes reasonable

limitation to right to freedom of religion...........................................................................30

c. Federal Law on Education.....................................................................................33

I. FLE aims at public order and safety of the citizens of UP.................................33

II. FLE is in juxtaposition to several human rights..................................................35

1
ii) Prosecution under the Assembly, Public Order and Security Act (APOSA) and

UP’s use of lethal force....................................................................................................36

I. Protest incited violence and is unlawful under APOSA.....................................36

II. UP police’s action commensurate condition of necessity and proportionality...37

Reparation.......................................................................................................................41

Prayer of Relief................................................................................................................41

Word Count......................................................................................................................41

2
List of abbreviations

¶ Paragraph
ACHR American Convention on Human Rights

ACHPR African Commission on Human and

People’s Rights
APOSA Assembly, Public Order and Security Act
BPUFF Basic Principles on the Use of Force and

Firearms by Law Enforcement Officials

Convention on Elimination of All forms of

CEDAW
Discrimination against Women

Cruel Inhumane and Degrading Treatment

COC Code of Conduct for Law enforcement

officials
CRC Convention on Rights of the Child
CRPD Convention on Rights of People with

Disabilities
FLB Federal Law on Blindness

FLE Federal Law on Education

FLP Federal Law on Pesticides

Ibid Ibidem
ICCPR International Covenant on Civil and

Political Rights
ICESCR International Covenant on Economic ,

3
ICRC International Committee of the Red Cross

IP Isle of Penguins
MDC Médicos de Caridade

NCU Natasia Continental Union

NGO Non- Governmental organization
p. Page Number

PTSD Post-Traumatic Stress Disorder

TCU Tierra-Helada Continental Union

THHR Convention Tierra-Helada Human Rights Convention

THHR Court Tierra- Helada Human Rights Court

United Nations
UN
United Nations Convention on the Law of
UNCLOS
the Sea
UP United Perrigma

AI Artificial Intelligence

Index of Authorities

I. Legal Instruments

Treaties, Conventions and Charters

ACHR American Convention on Human Right, ‘Pact of

San Jose’, Costa Rica, 1144 U.N.T.S., 22

4
 November 1969 (Entry into force: 18 July

1978).

ACHPR African Charter on Human and Peoples’ Rights,

‘Banjul Charter’, Nairobi, 21 I.L.M. 58, 27 June

1981, (Entry into Force: 21 October 1986).

CEDAW Convention on Elimination of All Forms of

Discrimination Against Women, A/RES/34/180,

18 December 1979.

CRC Convention on Rights of Child, 1577, UNTS 3,

20 November 1989, (Entry into Force: 2

September 1990).

ICCPR International Covenant for Civil and Political

Rights, 999 UNTS 171, 16 December 1966.

ICESCR International Covenant on Economic Social and

Cultural Rights, 993 U.N.T.S. 3, adopted on: 16

December 1966, (Entry into Force: 3 Jan 1976).

UNCLOS United Nations Convention on Law of Seas,

1833 U.N.T.S.3, 1261, 10 December 1982,

(Entry into force: 14 November 1994).

Declarations and Resolutions

5
A/RES/63/181 United Nation General Assembly, Elimination of

all forms of intolerance and of discrimination

based on religion or belief, 16 March 2009,

A/RES/63/181.

A/RES/67/268 United Nation General Assembly, Status of

internally displaced persons and refugees from

Abkhazia, Georgia and the Tshkinvali region/

South Ossetia, Georgia, 23 August 2013,

A/RES/67/268.

BPUFF Basic Principles on the use of Force and

Firearms by Law Enforcement Officials,

adopted on: 27 August-7 September 1990.

COC Code of Conduct for Law enforcement officials,

A/RES/34/169, adopted on: 5 February 1980.

HR/PUB/11/04 United Nations, Guiding Principles on Business

and Human Rights: Implementing the United

Nations Protect, Respect and Remedy

Framework, HR/PUB/11/04, 2011.

Rio Declaration UN Conference on Environment and

Development, Rio Declaration on Environment

and Development, UN Doc.

A/CONF.151/26/Rev.1, 14 June 1992.

6
Siracusa Sircausa Principles on the Limitation and

Derogation of Provisions in the International

Covenant on Civil and Political Rights Annex,

UN Doc E/CN.4/1984/4, 1984.

UDHR Universal Declaration of Human Rights, 217 A

(III), 10 December 1948.

General Comments

Human Rights Committee

General comment no. 22 UN Human Rights Committee (HRC), CCPR,

General comment no.22: article 18 (the right to

freedom of thought, conscience and religion),

30 July 1993.

General comment no. 36 UN Human Right Committee (HRC), CCPR,

General comment no.36: article 6 (Right to life),

30 October 2018.

Economic and Social Council

General comment no.14 UN Committee on Economic, Social and

Cultural Rights (CESCR), General comment

no.14, The Right to highest attainable standard

of health (art.12 of the Covenant on Economic,

7
 Social and Cultural Rights), E/C.12/2000/4, 11

August 2000.

Child Right Committee

CRC/C/GC/14 Committee on Rights of child, 62 nd session,

General Comment no.14, The right of child to

have his or her best interest taken as a primary

consideration, ( art.3, para.1 of the Child Rights

Convention), CRC/C/GC/14, 29 May 2013.

CRC/C/GC/15 Committee on Rights of child, 62 nd session,

General Comment no.15, The right of child to

the enjoyment of the highest attainable

standard of health, (art.24 of the Child Rights

Convention), CRC/C/GC/15, 17 April 2013.

CRC/ GC/2005/6 Committee on Rights of child, 39th session,

General Comment no.6, Treatment of

unaccompanied and separated children outside

of their country of origin, CRC/ GC/2005/6, 1

September 2005.

CRC/C/153 Committee on Rights of child, 40th session, ‘Day

of general discussion: children without parental

care’, CRC/C/153, 17 March 2006.

8
CRC/C/GC/7/Rev.1 Committee on Rights of child, 40th session,

General Comment no.7 (2005), Implementing

child rights in early childhood,

CRC/C/GC/7/Rev.1, 20 September 2006.

Committee on Elimination of Discrimination against Women

General Recommendation No.3 Committee on Elimination of Discrimination

against Women, 6th session, CEDAW General

Recommendation No.3: education and public

information campaign, A/42/38, 1987.

Rapporteur

Aguilar Catalina Devandas-Aguilar, Report of the

Special Rapporteur in the field of persons with

disabilities, A/HRC/43/41, 17 December 2019.

Despouy Leandro Despouy, Final Report of the Special

Rapporteur on Human Rights and Disability,

E/CN.4/Sub.2/1991/31, 12 July 1991.

Devaja Ermira Mehmati Devaja, ‘Urgent need to

prevent human right violation during peaceful

assembly’, Council of Europe, 10 May 2016.

Elver Hilal Elver, Interim Report of the Special

Rapporteur on the right to food, A/72/188, 21

July 2017.

9
 Jahangir Asma Jahangir, Special Rapporteur on freedom

of religion or belief: Mission to France,

E/CN.4/2006/Add.4, 8 March 2006.

Kiai Maina Kiai, Report of the Special Rapporteur on

the rights to freedom of assembly and of

association, A/HRC/26/29, 14 April 2014.

United Nations Documents

United Nation Environment Assembly

UNEA Res.1/6 United Nations Environment Assembly, 1 st

session, Marine plastic debris and micro

plastics, Resolution 1/6, 27 July 2014.

Human Rights Council

Knox John H. Knox, Report of the Independent

Expert on the issue of human rights obligations

relating to the enjoyment of a safe, clean,

healthy and sustainable environment,

A/HRC/25/33, 30 December 2013.

II. Jurisprudence

Domestic Laws

10
French Law 2004 France, Law of secularity and conspicuous

religious symbols, 15 March 2004.

Face coverings partial ban act Netherland, Act Partially prohibiting face covering

clothing, 27 June 2018.

Law of 1 June 2011 Belgium, Belgian Law of 1 June 2011.

Act No. 15/2011 Myanmar, The Right to Peaceful Assembly and

Peaceful Procession Act No. 15/2011, 2

December 2011.

Egypt Law 107/2013 The Arab Republic of Egypt, The Egypt Law

107/2013 On the Right to Public Gatherings,

Processions and Peaceful Protests, 24

November 2013.

Law no. 2911 Republic of Turkey, The Turkish Penal Code,

Law on Meetings and Demonstration Marches,

Law no. 2911, 6 October 1983.

Public Order Management Act The Republic of Uganda, The Public Order

Management Act, 2 October 2013.

UK Public Order Act The United Kingdom of Great Britain and

Northern Ireland, UK Public Order Act 1986, 7

November 1986.

European Court on Human Rights

11
El Morsli El Morsli v. France, 2008, ECtHR, application

no: 15585/06.

Berladir Berladir and Others v. Russia, 2012, ECtHR,

application no: 34202/06.

Cisse Cisse v. France, 2002, ECtHR, application no:

51346/99.

Dahlab Dahlab V Switzerland, 2001, ECtHR,

application no: 42393/98.

Dogru Dogru v France, 2008, ECtHR, application no:

27058/05.

G G v. The Federal Republic of Germany, 1989,

ECtHR, application no: 13079/87.

Giuliani Giuliani and Gaggio v. Italy, 2001, ECtHR,

application no: 23458/02.

Kudrevičius Kudrevičius and Others v. Lithuania, 2015,

ECtHR, application no: 37553/05.

Kuznetsov Sergey Kuznetsov v The Russian Federation,

2008, ECtHR, application No. 10877/04.

McCann McCann and others v. the United Kingdom,

1995, ECtHR, application no: 19009/04.

Molnár ÉvaMolnár v. Hungary, 2009, ECtHR,

application no: 10346/05.

12
 Olsson Olsson v Sweden, 1988, ECtHR, application no:

10465/83.

S.A.S S.A.S v France, 2014, ECtHR, application no:

43835/11.

Sahin Leyla Sahin V turkey, 2004, ECtHR, application

no: 44774/98.

TATAR TATAR v. Romania, 2009, ECtHR, application

no: 67021/01.

Inter-American Court of Human Rights

Dorzema Nadege Dorzema et al v Dominican Republic,

2012, IACtHR, Series C No. 251.

J. J. v. Peru, 2013, IACtHR, Series C No. 275.

OC-23/17 Advisory Opinion OC-23/17, ‘Requested by

Republic of Colombia: The environment and

Human Rights’, IACtHR, 15 November 2017.

Riffo et al. Case of Atala Riffo and Daughters v. Chile,

2012, IACtHR, Series C No. 254.

Sánchez Cruz Sánchez et al. v. Peru, 2015, IACtHR,

Series C No. 292.

United Nations Human Rights Committee Communication

Hendriks Hendriks v. The Netherlands, 1988, Human

Rights Committee, Communication no.

201/1985.

13
Kivenmaa Kivenmaa v. Finland, 1994, Human Rights

Committee, Communication no.412/1990.

African Commission on Human and People’s Right

CESR et al. The Social and Economic Rights Action Centre

(SERAC) and the Centre for Economic and

Social (CESR) Rights v. Nigeria, 2001, ACHPR,

communication no: 155/96.

ITLOS

Bluefin Tuna case Southern Bluefin Tuna case, (Newzealand v.

Japan, Australia v. Japan), ITLOS, Case No.3,

1999.

Mox Plant Case The Mox Plant Case, (Ireland v.United

Kingdom), ITLOS, Case No.10, 2001.

Domestic Cases

England

Re T Re T (adult refusal of medical treatment), 4 All

ER 649, 30 July 1992.

India

Thangal Attakoya Thangal v. Union of India, AIR, 1990,

KLT.580, 1 January 1990.

South Africa

14
 M State v. M., 3 SA 232, 12 BCLR 1312, SA, 26

September 2007.

Moodley et al. Dr. T Moodley et al. v. JMS and BS, 3 SA 492,

Case Number: 34758/2014, 20 October 2014.

United States

Inc. HCA, Inc. v. Miller ex rel. Miller, 36 S.W.3d 187,

(Tex. App-Houston [14th District], 28 December

2000).

Prince Prince v. Massachusetts, 321 U.S.158, 31

January 1944.

III. Doctrines

Books and Commentaries

Saul et al. Ben Saul, David Kinley and Jaqueline

Mowbray, The International Covenant on

Economic Social and Cultural Rights, Oxford

University Press, Match 2014.

Sands Phillipe Sands, Principles of International

Environment Law, 2nd Edition, Cambridge

University Press, United Kingdom, 2003.

Tobin John Tobin (ed), The Right to Health in

International Law, Oxford University Press, New

York, United States, 2012.

15
Crawford James R. Crawford, Brownlie’s Principle of

International Law, 8th Edition, Oxford University

Press, 2012.

Schutter Olivier De’ Schutter, International Human

Rights Law, Cambridge University Press, New

Delhi, 2010.

Alwis et al. Savitri Gonnesekere and Rangita De Silva-De

Alwis, Women’s and Children’s Rights in a

Human Rights based approach to development,

United Nations Children’s Fund, New York,

2005.

Amnesty International Amnesty Internationals, ‘Use of force:

Guidelines for implementation of UN Basic

Principles on Use of Force and Firearms by law

enforcement officials’, Netherland, August

2015.

OSCE/ODIHR handbook Human Rights Handbook on Policing

Assemblies, OSCE Office for Democratic

Institution and Human Rights (ODIHR),

Warsaw, Poland, 2016.

OSCE/ODIHR guidelines Guidelines on Freedom of Peaceful

Assemblies, Second Edition, OSCE Office for

16
 Democratic Institution and Human Rights

(ODIHR), Warsaw, Poland, 2010.

Korff Douwe Korff, The Right to Life: a guide to

implementation of article 2 of the European

Convention on Human Rights, 1st Edition,

Council of Europe, Belgium, 2006.

Harris David Harris, Cases and Materials on

International Law, 7th Edition, Sweet & Maxwell,

2010.

Connolly et al. Stuart Casey-Maslen and Sean Connolly,

Police use of force under International Law,

Cambridge University Press, United Kingdom,

2017.

Thematic Report of Inter-American Commission on Human Rights

OEA/Ser.L/V/II.Doc.54/13 The Rights of Girls and Boys to a family.

Alternative care: Ending Institutionalization in

the Americas, Inter-American Commission on

Human Rights, OEA/Ser. L/V/II.Doc.54/13, 17

October 2013.

Thesis and Dissertations

17
 Chetty Prianka Roxann Chetty, ‘An examination of the

rights of child to refuse medical treatment: a

South African perspective’, 211501722,

University of Kwazulu-Natal Howard College,

February 2016.

Journal and Articles

Archard et al. David Archard and Marit Skivenes, ‘Balancing

a child’s best interest and child’s best views’,

International Journal of children’s rights, 2009.

Dumberry Patrick Dumberry, ‘Conclusion of the

Committee on Aspects of the Law of State

Succession’, adopted at the 73rd Conference

of the ILA, Resolution no. 3/2008,

International Law Association (ILA), 2008.

Ascoli Silvia D’ Ascoli and Kathrin Maria

Scherr, ‘The Rule of Prior Exhaustion of Local

Remedies in the International Law Doctrine and

its Application in the Specific Context of Human

Rights Protection’, EUI Working Paper Law No.

2007/02, European University Institute,

Department of Law, 2007.

18
Elmorshidy Ahmed Elmorshidy, ‘Holographic Projection

technology: the world is changing’, Volume 2,

Issue 2, Journal of Telecommunication, May

2010.

Greer Steven Greer, ‘the margin of appreciation:

Interpretation and discretion under the

European Convention on Human Rights.’,

University of Bristol, Council of Europe, United

Kingdom, 2000.

Hamilton Michael Hamilton, Towards General Comment

no.37 on article 21 ICCPR the Right of Peaceful

Assembly, International Center for Non-profit

Law, 2019.

Kalantry Sital Kalantry and Maithili Pradhan, ‘Veil Bans

on European Court of Human Right’, Vol.21,

Issue 15, American Society of International

Law, 2017.

Maurin Eric Maurin and Nicolas Navarrete H., ‘Behind

the veil: the effect of banning Islamic veils in

schools’, IZA Institute of Labor Economics,

Deutsche Post foundation, September 2019.

19
McCrea Ronan McCrea, ‘The Ban on the Veil and

European Law’, Human Rights Law Review,

Oxford University Press, 2013.

Michaels Ralf Michaels, ‘Banning Burqas the perspective

of Post-Secular Comparative Law’, Vol.28,

Duke University, 2018.

Symposium

Vogel Cassandra M. Vogel, ‘ An Unveiling: Exploring

the Constitutionality of a Ban on Face

Coverings in Public Schools’, Vol.78, Issue 2,

Brooklyn Law Review, 2013.

Miscellaneous

Article 19 ‘Legal Comment: Ban on Full Face Veil and

Human Rights: Freedom of Rights Perspective’,

Article 19 global campaign for free expression,

United Kingdom, 2010, available at:

https://www.article19.org/data/files/pdfs/publicat

ions/bans-on-the-full-face-veil-and-human-

rights.pdf, accessed on: 3 March 2020.

Nave R Nave, ‘Holography’, available

at:http://hyperphysics.phy-

20
 astr.gsu.edu/hbase/optmod/holog.html,

accessed on: 1 May 2020.

Physicians for Human Rights Physicians for Human Rights, The Taliban’s

war on women: a health and human rights crisis

in Afghanistan, United States, 1998.

Right to protest ‘Right to protest: principle on the protection of

human rights in protest’, Article 19, London,

United Kingdom, 2016, available at:

https://www.article19.org/data/files/medialibrary/

38581/Right_to_protest_principles_final.pdf,

accessed on: 15 May 2020.

Surfrider Foundation Surfrider Foundation Europe, ‘Chemical

Pollution of the ocean: the pesticide issue’, 21

February 2020, available at:

https://surfrider.eu/en/learn/news/chemical-

pollution-of-the-ocean-the-pesticide-issue-

121131209634.html, accessed on: 13 June

2020.

21
Summary of Fact

United Perrigma

United Perrigma (UP), a Federal Republic composed of Perrigma, Isle of Penguin (IP)

and Mousia located on the east side of Tierra-Helada Continent is a member of United

Nations, Tierra-Helada Continent Union (TCU) and state party to all human rights

treaties under UN Framework.

Rosapest Inc.

IP based company Rosapest Inc. founded by Rosario family ventured into

manufacturing cheaper and affordable pesticides along with agricultural drones and

Autonomous Humanoid Robots (AHRs). Between July 2019 and June 2020, thousands

of harks were found dead on the shores of IP, Mousia, Wasun Republic and the

Republic of Grootman. Some scientists and newspaper articles alleged that the use of

such cheap version of pesticide was the cause of this catastrophe.

Federal Law on Pesticides

On 30 October 2019 the Federal Government stopped production, use or distribution of

the cheaper version of pesticides for one season. Eventually on April 2020, Federal Law

on Pesticides (FLP) was adopted by federal government banning use, production,

distribution and stock-piling of cheaper version of pesticides. The decision was

22
prompted to protect the devastation against marine environment due to the use of toxic

pesticides.

Federal Law on Blindness

UP Federal Medical Research Council conducted a research with Medicos De

Carridade (MDC), an NGO and found AI empowered method of curing blindness being

90% successful and 99% safe. On 13 September 2019, UP passed Federal Law on

Blindness (FLB) compelling parents to register their children for gene therapy and AI-

empowered methods of curing blindness.

Federal Law on Education

Various violent protests against FLP and FLB occurred in public schools resulting

fatalities. Investigation difficulties arose as suspect involved are shown wearing veiled

Galapagos in videos. Subsequently, UP passed Federal Law on Education (FLE) which

holds the objective of an inclusive society and prohibits use of materials, weapons and

clothing menacing safety and security within public schools.

Following the passing of the FLE, Cartalia’s school amended its curricula to teach all

pupils and students about sexuality and rights of LGBTI people. Furthermore, many

schools also banned students from wearing veiled Galapagos while at school.

Independence of IP

On 30 January 2020, Nationalist Party (NP) won the elections and left TCU on 15 March

2020. Eventually, IP announced its independence from UP on 23 March 2020 and

issued citizen cards and passports allowing dual citizenship for those willing to maintain

23
ties with Perrigma. Within a week, of its independence IP was recognized by 23 States

of the NCU. Consequently, IP lodged its application for membership to the NCU – which

functions like the African Union. Although Member States of the NCU are yet to make a

decision on that application, the Football Federation of the Cup of Natasian Nations

accepted IP to participate in the qualifiers for the 2021 games scheduled for October

2021.

APOSA

On 3 May 2020, Cartalia and her friends staged a hologram procession without

notifying, to avoid requirements under Assembly, Public Order and Security Act

(APOSA). The protest held in front of private residence of governor of IP used AHRs to

project holograms. They were shot by police officers after warning and later charged

under APOSA for holding unlawful gathering.

On 26 May 2020, MDC brought a case against UP in the Tierra-Helada Human Rights

Court (THHR) alleging violation of human rights from FLP, FLB, FLE and prosecution

under APSOA.

24
Summary of Argument

a. FLP adheres to a due diligent effort to carry out precautionary measure and

proportionate response to ensure protection of right to healthy environment and

conserve marine environment. In doing so, it ensures balanced approach to protect the

right of present and future generation. It has subsequently acted upon state’s

responsibility to prevent harmful impact of non-state actors over the population of UP.

b. UP through enactment of FLB, placed scientific approach to cure visual impairment of

children and secure their best interest. It has put a reasonable restriction on the

religious conviction of Rosario's family and the right to be heard of Cartalia Rosario.

c. Freedom to manifest religion is forum externum, subject to limitation. The limitation

prescribed under FLE pursues the legitimate aim of protecting public safety and security

which was both necessary and proportionate to achieve the end. The law further

assures the right to equality, freedom of expression, right to education, right to health

secured under THHR convention and several other human rights instruments.

d. The use of force by UP agents was necessary and proportional serving the aim of

self-defense and protection against life-threatening situations. Such use of force is non-

arbitrary in nature.

25
Preliminary Issues

A. Jurisdiction

The respondent does not contest the jurisdiction of the court.

B. Admissibility

I. The cases within the territory in IP is inadmissible.

On 23 March 2020, IP announced its independence from UP and filed an application to

join NCU.1 IP has obtained recognition from international community and even UP

disputes only on territorial claims. 2 Therefore, on the basis of right to external self-

determination of people in IP, IP as a secessionist states is not governed under the

obligation of UP.3 According to the state practice, states forbear the practice of

automatic succession of international treaties which in this case infers to THHR

Convention.4 In this situation of IP, the court cannot ascertain the dispute under the

scope of THHR convention.

Even if this court finds the cases of IP inclusive to the scope of THHR convention, cases

concerning FLE and APOSA was not been brought forward to courts in IP (i.e.

1
Factsheet, ¶27.
2
Ibid.
3
Dumberry, ¶6.
4
Ibid.
26
Magistrate court, High court or Supreme Court). 5 Therefore, the necessary criteria of

exhaustion of local remedies have not been fulfilled for the cases to become admissible

in THHR court.6

5
Factsheet, ¶2.
6
ACHR, art. 46(1) (a); ACHPR, p. 6; Ascoli, p.3.
27
Merits of Claims

a. Federal Law on Pesticides

I. FLP safeguards the right to life of both present and future generation by

measures to conserve the environment

FLP ensures protection of right to clean environment and maintains careful balance to

safeguard right to life7 of both present and future generation. 8 UP Federal authorities

revealed the death of harks and other animal living in the sea was caused by chemical

deposits in the sea.9 This has made severe impact on exercise of article 11 of THHR

convention.10Although, sprayed on land chemical pollutants like cheap pesticide gets

transported into water cycle through water molecule; first, water streams coming from

land get contaminated and eventually interconnectivity of water cycle amplifies impact

on marine environment endangering the whole of marine environment. 11 The

environment degradation due to deposits of such toxic wastes into environment causes

numerous short and long term impact on physical and mental health as already

observed in case of Ogoni people in Nigeria. 12 Moreover, it is also pertinent to note that

fishing is one of the major source of livelihood in IP. Such large scale of pollution in

marine environment can lead to dead zone 13 in the ocean which causes severe

7
OC-23/17, ¶59.
8
Knox, ¶9.
9
Factsheet, ¶12.
10
Similar to ACHR, art.11.
11
Surfrider Foundation, ¶4.
12
CESR et al, ¶2.
13
A/RES/67/268, ¶17.
28
deprivation of people from basic elemental right to food and water. 14 The depletion of

marine environment of such nature in long run threatens the existence of human kind 15

and unequivocally jeopardize the right to life of both present and future generation. 16

II. UP considers obligation to prevent harmful act of non-state actors

The use of pesticide has caused dead of thousands of harks as well stocks of other fish
17
and sea birds. This has severely threatened the fishing tourism which is the major

source of economy of IP.18 UP should act to fulfill its minimum core obligation and

secure productive commitment to improve occupational health of fishing tourism and

prevent any degradation of marine life. 19 Furthermore, impact of use of pesticide has

resulted in violation of right to life of UP people. State has an obligation to ensure that

non- state actors do not infringe upon human rights of its citizens. 20 In absence of policy

commitments to meet their responsibility to respect human rights through environmental

protection, States have wide margin of appreciation to employ enforcement means in

context to industrial activities that impact environment and human health as noted by

ECtHR in Tatar v. Romania.21 In context to Business and human rights, as a lex ferenda

even business should acknowledge human rights due diligence method to prevent

human rights violation.22

14
Elver, ¶ 17; Thangal, ¶583.
15
OC-23/17, p.4.
16
Saul et al., p.858.
17
Factsheet, ¶12.
18
Fishing tourism; Factsheet, ¶ 9.
19
ICESCR, art. 2(1); Commentary of Economic, Social and Cultural Rights, p.150.
20
Knox, ¶50.
21
Tătar, p.2.
22
HR/PUB/11/04, Principle 17, p.17.
29
In this situation where there exists possibility and urgency that cheap pesticide have

severely degraded the environment. 23 UP employs precautionary principle to stop the

risk associated with cheaper version of pesticides. 24 This principle has established a

customary international law with opinio juris25 and state practice26 for states to control

pollution immediately as a precaution to prevent irreversible damage or threat done by

non-state actors over the people in UP.

b. Federal Law on Blindness (FLB)

I. FLB ensures recognition of best interest of children and utilizes reasonable

limitation to right to freedom of religion

The state intervention for the purpose to cure blindness of Cartalia and her unborn

brother is an effort to fulfill the obligation and secure best interest of child under article 3

of CRC.27 Research report of MDC and UP Federal Medical Research Council, found AI

empowered method to be capable of curing any form of blindness with 90% success

rate, along with it being 99% safe. 28 In order to ensure proper treatment, UP has

prioritized right to development and health as central pillar in best interest of children. 29

In pursuit to cure blindness and ensure highest attainable standard of children’s

health30, UP takes lawful and reasonable limitation to religious freedom of Penguinatics

23
Factsheet, ¶12.
24
UNEA Res.1/6, ¶1.
25
UNCLOS, art. 194; Rio Declaration, Principle 15; Sands, p.266.
26
Bluefin Tuna Case, ¶¶79-80; Mox plant case, ¶82.
27
CRC, art.3 (1) and (2).
28
Factsheet, ¶15.
29
CRC/C/GC/14, ¶72.
30
CRC/C/GC/15, ¶31.
30
under FLB31 which fulfills the rational connection test on legitimacy and proportionality of

limitation.32 The Respondent identifies that the protection of best interest of visually

impaired children would be different to other children and is based on their circumstance

of disability.33 UP’s measure is even compatible to the CRPD which obliges state to

provide health facilities without any discrimination even on basis of religion. 34 If UP is to

deny medical treatment to Cartalia and other Penguinatics then they would face de

facto discrimination to access state facilities compared to other beneficiary children. In

regards to this case, UP deems the views of Cartalia and her parents is inappropriate

for following reasons:

i) UP ensures right of child over the harmful parent’s guidance based on

religious conviction

The Rosario family has based opposition on medical treatment citing the will of Mother

Penguin.35 Parental guidance on basis of such religious belief would disregard the

holistic development of child compared to other children 36. This would lead to failure of

realization of Cartalia’s right to human dignity. 37 Preemptively, applicant might assert

responsibility of parents as natural and fundamental unit to care for children. 38 However,

parent’s failure necessitates state’s legal duty to provide reasonable necessary medical

31
This meets limitation criteria necessary for interference of state in religious freedom;
Tobin, p.182.
32
Ibid, p.62.
33
CRC/C/GC/14, ¶32.
34
M, ¶67.
35
Factsheet, ¶25.
36
CRC, art.2.
37
CRC, art.6; CRC/ GC/2005/6, ¶10.
38
CRC/C/153, ¶644; Olsson, ¶¶ 59, 72.
31
care for their children.39 In a conflict between parent and child’s interest, UP has given

priority to child’s best interest.40

Considering preventive health care, UP has identified 50% probability of hereditary

blindness and interfered to prevent children of Jessy Rosario from visual impairment. 41

State has to ensure that traditional harmful practices to health of a child are abolished

along with realization of an obligation to respect and not to restrain traditional preventive

care or healing practices.42 But Rosario family have not introduced any traditional

preventive measure, their belief seems to prescribe that they do nothing regarding the

health of their children. 43 UP through FLP has introduced preventive measure to ensure

welfare of children and prevent further visual impairment from hereditary character. 44

ii) UP attempts to secure welfare of Cartalia and considers her view harmful to

the best interest

Cartalia is born into Penguinatic family and for the matter is influenced by religious

conviction of her family.45 State enjoys wide range of power in limiting parental freedom

and authority in things affecting child’s welfare including matters of religious conviction

as democratic society rests its continuance on healthy well rounded people into

maturity46. Her view which should be respected per her evolving capacity is result of

39
Inc., pp.6-7; Moodley et al., ¶¶9-16.
40
Hendriks, ¶¶10.4-10.5.
41
Blindness can be through hereditary character; Despouy, ¶109.
42
General comment no.14, ¶34.
43
Factsheet, ¶12.
44
Aguilar, ¶13.
45
Chetty, pp. 68, 72; Factsheet, ¶25.
46
Prince, ¶¶16, 19.
32
reliance on other’s judgment and ignorance 47 which she later in maturity might regret. 48

Her blind devotion to her parents’ beliefs 49 has obstructed her to build sufficient

understanding to be capable of appropriately forming her own views on the matter. 50

Child’s opinion does not automatically create case law. 51 Cartalia’s opinion was based

on the reasoning that she doesn’t mind being like her parents 52 and lacked precision,

with sufficient knowledge of the facts and the consequences they imply. 53 So, in this

context UP through FLB has simply secured best interest of Cartalia Rosario.

c. Federal Law on Education

I. FLE aims at public order and safety of the citizens of UP

The limitation prescribed by FLE on use of clothing menacing safety and security of

learners54 is provisioned to protect public order, safety, health and freedom of others. 55

Sporadic cases of violence after promulgation of FLB and FLP, has created difficulty to

investigate suspects wearing veiled Galapagos. 56

47
Archard et al, p.11.
48
Re T, ¶5.
49
Factsheet, ¶25; She thinks of her parents as heroes.
50
OEA/Ser. L/V/II.Doc.54/13 ¶253.
51
Riffo et al., ¶206.
52
Factsheet, ¶25.
53
Riffo et al., ¶207.
54
Factsheet, ¶24.
55
ACHR, art. 12(3).
56
Factsheet ¶23.
33
Veils are a barrier in identification of a person 57. Hence, restriction on such veils helps

state to identify a person, prevent danger upon person and property and combat identity

fraud.58

Furthermore, UP can impose certain limitation on right to manifest one’s religion. 59 If

limitations as such adheres to condition of legality, legitimacy and proportionality. 60

i) Limitation subscribes to condition of necessity and proportionality:

Public order and security is the specific need predicated by FLE which establishes its

necessity and proportionality.61 Prohibitions made to maintain public order is valid and

does not vitiate freedom to manifest religion. 62 As reiterated in El Morsli case, such

limitation helps in the identification of person which undoubtedly is necessary in the

interest of public safety.63

UP utilizes its wide margin of appreciation 64 by duly prioritizing right to life, liberty and

security over right to manifest religion. 65 Several states as France66, Belgium and

Netherland has prescribed such limitation to be proportional to norms of human rights. 67

FLE ensures group interest of safety over individual interest of manifestation. 68 FLE is

compatible with object and purpose 69 of THHR convention. This establishes limitation
57
Jahangir, p.13.
58
S.A.S, ¶135.
59
ICCPR, art. 18(3); CRC, art. 14(3), ACHR, art. 12(3).
60
Schutter, p. 322.
61
General Comment No. 22, ¶8.
62
Sahin, ¶158; S.A.S, ¶135.
63
El Morsli, p.4.
64
Greer, p.9.
65
Crawford p. 667; Sahin ¶¶ 99,111; Dahlab, p.13.
66
French Law 2004.
67
Law of 1 June 2011; Face coverings partial ban act, art.1.
68
Schutter, p.223.
69
Siracusa, p.1
34
under FLE as ‘necessary’ and ‘proportional’ to preserve the aim of public safety and

security.70

II. FLE is in juxtaposition to several human rights

i. Guarantees right to equality:

Respondent submits that full faced veil infringes freedom and dignity of a women 71, puts

at disadvantage, prevents from joining society 72 and subjugates them. As noted in S.A.S

v. France case, veils are a symbol of subservience that negates the principle of gender

equality and equal dignity of human being. 73 The prohibition on such clothing is indeed

protecting “rights of women” and promoting women’s equality as required by CEDAW. 74

Limitation under FLE assures ‘right to equality’ and ‘non-discrimination’ of women. 75

Further, FLE enshrines freedom of expression 76 articulated under art.13 of ACHR and

art. 14 of CRC.77

iii) Assures economic, social and cultural rights:

The 1994 circular of France discloses significant increment in fraction of girl child in

school after the ban on full face veil. 78 The prohibition opens interaction among genders

which is an inherent part of good life. 79 Prejudice and stereotype in educational

70
S.A.S ¶83; Sahin, ¶106; Dogru, p.3; Kalantry, ¶8.
71
Michaels, p.7.
72
Vogel, p. 18.
73
S.A.S, ¶17.
74
CEDAW, art.2 (b).
75
General Comment No.22 ¶8.
76
Factsheet, ¶24.
77
CRC, art. 14; ACHR, art.13.
78
Maurin, p.19.
79
McCrea, p. 30.
35
program80 is eliminated via FLE. Hence, prohibitions under FLE aids to assure right to

education of Penguinatics.81 Wearing full face veil causes detrimental health problems

including extraordinarily high levels of PTSD and major depression. 82 FLE abolishes

traditional practice of wearing Galapagos which is prejudicial to health of children 83 and

ensures right to health84 of Penguinatics. A fortiori, FLE is securing many inherent

human rights of Cartalia and Penguinatic students. Therefore, FLE should be found in

no violation.

ii) Prosecution under the Assembly, Public Order and Security Act

(APOSA) and UP’s use of lethal force

I. Protest incited violence and is unlawful under APOSA

Protestors appeared to carry spears and marched inside governor’s residence despite

the warning.85 This replicates protestor’s intention to use violence 86 and cause public

disorder87 which does not fall under the ambit of ‘peaceful assembly’. 88

80
General Recommendation No.3, ¶4.
81
ICESCR, art.13.
82
Physicians for Human Rights, pp.8, 9.
83
CRC, art. 24(3); Alwis et al., p.12.
84
ICESCR, art. 12.
85
Factsheet, ¶30.
86
Cisse, ¶37.
87
G, p.6.
88
ICCPR, art.21; ACHR, art.15; Manfred Novak, UN Covenant on
Civil and Political Rights. CCPR Commentary (2nd rev. ed.) Commentary, p. 487.
36
UP’s common law prohibits demonstration in private property. 89 APOSA requires

advance notification of protests. 90 Cartalia and her friends failing to comply with these

stipulated requirements establish their protest as unlawful. 91 Such requirements are

general state practice.92 They allow state to take appropriate measures to facilitate 93 and

guarantee smooth assembly94, protect public safety95, public health and freedom of

others96. Adherence to such requirement aids to reconcile lawful interests of others and

prevent disorder and crime.97

An individual acting violently while participating in an assembly is no longer exercising a

protected human right.98 Cartalia and her friends intentionally avoiding aforementioned

requirements highlights their false intention to take an overt advantage of

unpreparedness of state authorities to facilitate an assembly. Hence, this justifies the

prosecution against them under APOSA.

II. UP police’s action commensurate condition of necessity and

proportionality99

89
Factsheet, ¶11; the demonstration around the private property requires consent of
property owner which is not provided to Cartalia and her friends; OSCE/ODIHR
guidelines, p.17.
90
Factsheet, ¶29.
91
Kudrevičius, ¶149.
92
Act No. 15/2011, (Myanmar), section 7 (a); The Egypt Law 107/2013, art.8; Law no.
2911, (Turkey), art.10; Public Order Management Act, (Uganda), section 5; UK Public
Order Act, 7 November 1986, section11.
93
Kivenmaa, ¶7.7.
94
Kuznetsov, ¶42.
95
kiai, p.28, ¶58.
96
Hamilton, p.25.
97
Molnár, ¶37; Berladir, ¶42.
98
OSCE/ODIHR handbook, p.14.
99
Connolly et al., p.80.
37
Holograms are true 3 dimensional images showing depth and parallax 100 along with

creating an illusion of reality.101 Protestors marched inside governor’s premise with

stirring noise and appeared to carry spears102. This demonstrates armed resistance

capable to jeopardize life103. In light of such facts, using live ammunitions as a response

withstands the condition of necessity and proportionality:

i. Force used pursued ‘protect-life’ principle:

Law enforcement officials may use force when strictly necessary in unavoidable

situation104 when potentially lethal action is in motion. 105 Front rank of protestors

marching inside the governor’s residence with some appearing to carry spears 106

involves a life threating situation. Therein, force used at protestors involved a graduated

response107 aimed at saving another life108.

The march escalated despite the warning from police. 109 Warnings are non-violent

means110 serving as a precautionary measure. 111 Ineffectiveness of such means of de-

escalation justifies the necessity of level of force pursued. 112

100
Nave, ¶6.
101
Elmorshidy, ¶9.
102
Factsheet, ¶30.
103
COC, art.3.
104
Ibid.
105
Amnesty Internationals, p.59.
106
Factsheet, ¶30.
107
Devaja, p.17.
108
Amnesty Internationals, p.61.
109
Factsheet, ¶30.
110
BPUFF, art.4.
111
OSCE/ODIHR guidelines, p.17.
112
Right to protest, p.30.
38
UP police used firearms as a last resort in ‘absolute necessity’ to prevent a serious

crime involving threat to life.113 UP agent assessed reasonableness of use of force to

protect life which is proportional.114

ii. Allegation of violation of right to life is unreasonable

Bullets have been shot at holograms. 115 It does not fall under the concept of ‘every

person’ i.e. toute personne secured under THHR convention116. Allegation of violation of

right to life is spurious since no life terminating harm or injury has been caused by the

UP police’s action.117

Police resorted to force for self-defense 118 and defending a person from unlawful

violence119. The gravity of situation left police with no means and moment of

deliberation120 other than resorting to use of force. Law enforcement officials can use

firearms in extent necessary when other less dangerous means are not practical. 121 As

Giuliani and Gaggio case reaffirms, such strictly proportionate use of force is in the

pursuit of one of the aims delineated in accordance with the right to life of the

convention.122

Hence, the proportionate use of force by UP agents is non-arbitrary in nature 123 and

should not be found in contravention of article 4 of THHR convention.

113
Sánchez, ¶265; J., ¶330.
114
Dorzema, ¶87.
115
Factsheet, ¶30.
116
Korff, p.8.
117
General comment no.36, ¶6.
118
Ibid, ¶10.
119
Korff, p.23.
120
Harris, p. 747.
121
BPUFF, Principle 14.
122
Giuliani, ¶194.
123
General comment no.36, ¶10.
39
Reparation

UP is not responsible for allegation of any human rights violations. Therefore, it humbly

requests the court to declare on no reparations to be awarded.

40
Prayer of Relief

UP request the court to declare that applicant’s claims are inadmissible. Subsidiarily, it

prays this court to adjudge that:

i. The ban of Rosapest Inc. under FLP was based on precautionary principle to

protect marine environment.

ii. The medical treatment prescribed under FLB to Cartalia and her unborn

brother serves to protect the best interest of the children.

iii. The ban to wear Galapagos in public school serves to protect public security

and maintain peace therefore is a reasonable limitation.

iv. The use of force by UP police to prevent life threatening situation is

legitimate, adhering to principle of necessity and proportionality.

Word Count

Summary of Argument: 201 words

Memorial: 2980 words

41