THE INTERNATIONAL COURT OF JUSTICE

THE HAGUE, THE NETHERLANDS

QUESTIONS RELATING TO THE MATTERS CONCERNING THE EXPULSION OR

THREAT OF EXPULSION OF CITIZENS OF AMIRA FROM ROPHAN

THE REPUBLIC OF AMIRA

(Applicant)
vs.

THE FEDERATION OF ROPHAN

(Respondent)

MEMORIAL FOR THE RESPONDENT

JUSTITIA MOOT COURT COMPETITION
2020

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 STATEMENT OF JURISDICTION

By virtue of the Joint Notification and Special Agreement submitted to this Court on 16 March

16 by the Republic of Amira (Applicant) and the Federation of Rophan (Respondent), and in

accordance with Article 40(1) of the Statute of the International Court of Justice, the parties

submit to this Court their differences concerning the expulsion or threat of expulsion of citizens

of Amira from Rophan.

In accord with the Special Agreement notified to the Registrar of the Court on 16 March 2020,

the ICJ is hereby requested to decide the Case of the parties on the basis of the rules and

principles of general international law as well as any applicable treaties, and also to determine

the legal consequences, including the rights and obligations of the Parties, arising from its

Judgment on the questions presented in this Case.

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 QUESTION PRESENTED

I. WHETHER ROPHAN, IN ISSUING AND IMPLEMENTING THE JOINT STATEMENT

REGARDING THE DEPORTATION OF AMIRAN CITIZNES, ACTED IN VIOLATION OF

INTERNATIONAL LAW.

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 STATEMENT OF FACTS

REPUBLIC OF AMIRA

The Republic of Amira (Amira) is a large country that lies at the west coast of the Kelvin

Continent. Despite its vast territory, it is still considered to be a developing country because of its huge

population. Amira invested heavily on Information and Communication Technology (ICT) since 1995

and even encouraged its citizens to learn software development. As a result, Amira ranked 7 th on the 2015

Worldwide Information Technology Report.

FEDERATION OF ROPHAN

Federation of Rophan (Rophan) has abundant natural resources however, its ICT infrastructure

still heavily imports its hardware and talent from other countries. For several decades, Rophan has been a

top trading partner of the Federal Republic of Mykinos with their friendly relationship lasting more than

50 years already.

DIPLOMATIC RELATIONS BETWEEN AMIRA AND ROPHAN

Rophan started its diplomatic relationship with Amira only in 1995 after the end of Amira’s Civil

War. The relationship between them was considered to be civil, with officials from both countries often

engaged with rhetoric, with Mykinos fully supporting Rophan’s position against Amira.

ROPHAN’S 2014 HIGHLY CONTENTIOUS ELECTIONS

Rophan’s 2014 highly contentious elections brought to power a government friendly to Amira.

Because of such change, Amira and Rophan drastically experienced a much-improved diplomatic relation

between them. Inclusive to this was the sudden increased inflow of laborers and skilled workers from

Amira, mostly in the ICT Industry.

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 ROPHAN, THE “HACKING CAPITAL” OF THE WORLD

In 2018, Rophan started gaining ill reputation with news creeping up that Rophan is slowly

becoming the “hacking capital” of the world, where hackers and cyber-terrorists allegedly hold base due

to lax regulations on its ICT industry. It was also reported that crime rates have gone up 15% since 2014

and national surveys reveal that the local populace is blaming it on the increased number of Amirans

working in the country.

HACKING MADE TO THE MINISTRY OF DEFENSE OF MYKINOS

The servers of the Ministry of Defense of Mykinos were hacked, compromising documents

containing state secrets, mostly involving its national security. After the investigation, it was found out

that the hack was done within Rophan and the virus used for the execution of the hacking was traced to a

small company registered under the name of an Amiran company, which incidentally employed

several Rophan workers.

ECONOMIC SANCTIONS IMPOSED BY MYKINOS TO ROPHAN

With this, Mykinos issued a statement denouncing the so-called “cyber-terrorist attack” and

“urged” the government of Rophan to act “appropriately” against Amira. With the Rophan government

failing to perform retaliatory actions against Amira, Mykinos imposed several economic sanctions against

Rophan. Because of all these, civil unrest in Rophan increased. Riots broke out in city centers and citizens

staged mass rallies against Amirans with the slogan: “KICK THEM OUT!”

ROPHAN’S 2019 NATIONAL ELECTIONS

The anti-Amiran sentiments escalated so much so that Rophan’s Democratic Nationalist Party,

who have been very vocal against Amira during the election campaign won the 2019 national elections by

a landslide.

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 STATEMENT OF ROPHAN’S NEW SECRETARY OF INTERIOR

Not long after assuming office, Rophan's new Secretary of Interior immediately issued a

statement "condemning the continued hacking and continued cyber-terrorism conducted by Amiran

citizens in our land." The Interior Secretary also added that the new government will perform "all

necessary means to protect the safety and security of the country".

THE RESPONSE OF AMIRA

In response, Amira's Foreign Minister made a statement that Rophan's statements are

"discriminatory against the citizens of Amira and the citizens of Amira do not engage in criminal

activity."

DIPLOMATIC NEGOTIATIONS ARRIVED AT AN IMPASSE

To contain the tension, diplomatic means were resorted by both countries. However, after two (2)

months of stalled diplomatic negotiations, the countries arrived at an impasse. Due to this deadlock,

Rophan severed diplomatic ties against Amira, citing the security threat posed by the number of Amirans

working in Rophan, most especially ICT workers that Rophan considers as "criminal hackers".

ROPHAN’S JOINT STATEMENT

After severing diplomatic relations, Rophan, through the Joint Statement of its Secretary of

Justice and Secretary of Interior, advised all Amirans to voluntarily leave the country within 48 hours or

face deportation. The advice also stated that those exempted from this order shall be: (1) dual citizens of

Amira and Rophan; (2) citizens of Amira who are married to citizens of Rophan; (3) and citizens of

Amira who have minor children [who are citizens of Rophan] and are living in Rophan.

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 After the lapse of the 48-hour period, Rophan's deportation agents started issuing notices to

citizens of Amira within the country reminding them to leave or else face detention and eventual

deportation.

RESPONSE OF AMIRA

Amira's foreign minister issued a statement that Rophan's acts against its citizens on forced

deportation violate international law, specifically international humanitarian law and international law

against racial discrimination.

REFERRAL TO THE COURT

Diplomatic solutions having failed, on March 16, 2020, both states jointly submitted the dispute

to the Court by concluding the Special Agreement based on Article 40 (1) of the Statute of the Court.

Rophan likewise agreed to voluntarily stay the implementation of the deportation notices until the

resolution of this case on the merits.

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 SUMMARY OF PLEADINGS

I. ROPHAN, IN ISSUING AND IMPLEMENTING THE JOINT STATEMENT

REGARDING DEPORTATION OF AMIRAN CITIZENS, DID NOT ACT IN

VIOLATION OF INTERNATIONAL LAW.

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 MAIN PLEADING

I. ROPHAN, IN ISSUING AND IMPLEMENTING THE JOINT STATEMENT REGARDING

DEPORTATION OF AMIRAN CITIZENS, DID NOT ACT IN VIOLATION OF
INTERNATIONAL LAW.

A. Rophan’s conduct was not violative of the International Covenant on Civil and Political
Rights (ICCPR).

1. Rophan has the inherent right of expulsion.

A state may lawfully expel an alien in its territory. 1 The inherent nature of the right of expulsion

as an incident of State sovereignty was affirmed in a decision adopted by the Mixed Claims Commission

Netherlands-Venezuela in the Maal Case. The Umpire characterized the right of expulsion as “one of the

attributes of sovereignty” and stressed its defensive function: “the right of expulsion is inherent in all

sovereign powers and is one of the attributes of sovereignty, since it exercises it rightfully only in a

proper defense of the country from some danger anticipated or actual.” 2 The right to expel foreigners from

or prohibit their entry into the national territory is generally recognized and each State reserves to itself

the exercise of this right with respect to the person of a foreigner if it considers him dangerous to public

order, or for considerations of a high political character 3

The right of expulsion has also been recognized in regional court and commission decisions. The right of

States to expel aliens for the purpose of preserving public order. 4

1
Article 13 of the ICCPR

2
Maal Case, Mixed Claims Commission Netherlands-Venezuela, 1 June 1903, United Nations, Reports of International Arbitral Awards, vol. X,
pp. 730-733, at p. 731.

3
Paquet Case (Expulsion), Mixed Claims Commission Belgium-Venezuela, 1903, United Nations, Reports of International Arbitral Awards, vol.
IX, pp. 323-325, at p. 325 (Filtz, Umpire).

4
Case of Moustaquim v. Belgium, Judgment (Merits and Just Satisfaction), 18 February 1991, Application number 12313/86, para. 43. See also:
Case of Vilvarajah and others v. United Kingdom, Judgment (Merits), 30 October 1991, Application numbers 13163/87, 13164/87, 13165/87,
13447/87 and 13448/87, para. 102; Case of Chahal v. United Kingdom, Judgment (Merits and Just Satisfaction), 15 November 1996, Application
number 22414/93, para. 73; Case of Ahmed v. Austria, Judgment (Merits and Just Satisfaction), 17 December 1996, Application number
25964/94, para. 38; Case of Bouchelkia v. France, Judgment (Merits), 29 January 1997, Application number 23078/93, para. 48; and Case of
H.L.R.. v. France, Judgment (Merits), 29 April 1997, Application number 24573/94, para. 33.

9
 2. The procedural safeguards provided in Article 13 of the ICCPR should be set aside
because of compelling reasons of national security.

A state party may lawfully expel an alien in its territory. 5 The right of expulsion being an incident

of state sovereignty6, Rophan then, in a proper defense of the country from some danger anticipated or

actual, may exercise such right. The procedural safeguards in case of expulsion of an alien that is lawfully

in the territory of a State Party may be set aside when compelling reasons of national security so requires.

The irreparable damage to Rophan’s reputation and its diplomatic relations with other States, much so the

imminent threat posed by the hacking and cyberterrorism constitutes compelling reasons of national

security. Hence, Rophan’s actions are warranted and is not violative of the ICCPR.

a. The irreparable damage to Rophan’s reputation and its diplomatic relations

with other States is a compelling reason of national security.
In 2018, news started creeping up that Rophan is slowly becoming the "hacking capital" of the

world, where hackers and cyber-terrorists allegedly hold base due to lax regulations on Rophan's ICT

industry7. Rophan is now compelled to prevent impending hacking and address its adverse impact. As

what happened during the hacking of the Ministry of Defense of Mykinos 8, hacking executed within the

territory of Rophan, may include, as consequences, victim States imposing economic sanctions against

Rophan. Economic repercussions of sanctions may generally include high inflation, lowered purchasing

power, and a reduction in access to essential goods. As consequence, high inflation and the unavailability

of external finance following the imposition of sanctions may cause annual gross domestic product to

5
Article 13 of the ICCPR

6
Maal Case, Mixed Claims Commission Netherlands-Venezuela, 1 June 1903, United Nations, Reports of International Arbitral Awards, vol. X,
pp. 730-733, at p. 731.

7
Compromis ¶ 8

8
Compromis ¶ 9

10
decline.9 The decline in economic activities, 10 the inefficient allocation and utilization of resources, the

unequal distribution of facilities and budget cuts in the health sector, 11 result in the spread of diseases,

some of which become untreatable due to lack of access to clean water, sufficient food, and life-saving

medicine.12 Hence, irreparable damage to Rophan’s reputation and its diplomatic relations with other

States constitutes a compelling reason of national security.

b. Imminent threat posed by the hacking and cyberterrorism constitutes a

compelling reason of national security.
International law recognizes that it would be contrary to the purposes of the United Nations

Charter if a threatened nation were required to absorb an aggressor's initial and potentially crippling first
13
strike before taking those military measures necessary to prevent an imminent attack. The International

Court of Justice (ICJ) clarified in its Nicaragua Case, even minor acts of interstate force fall under the

general prohibition of article 2(4) of the UN Charter, regardless of whether they also qualify as acts of

“aggression”, or as “armed attacks” entitling the targeted state to resort to force in self-defence. 14 The fact

that Rophan still lags behind its ICT infrastructure with both hardware and talent still mostly being

imported from other countries15, Rophan is a weak target for cyberterrorism. A State that faces cyber

9
Suzan Adam Mohamed Hamis, The Ramifications of Economic Sanctions on Health Service System: A Comparative Study of Sudan Health
Service System Before and After Economic Sanctions (2012)

10
United Nations Off. For the Coordination of Humanitarian AFF and UNICEF, Economic Sanctions, Health and Welfare in the Federal
Republic of Yugoslavia 1900-2000, 28 (May 25, 2001) (“In 1991, prior to sanctions, trade averaged US $800 million per month. In 1994 it had
declined to a low of US $200 million per month.”).

11
Garfield, Devin, & Fausey, supra note 28, at 465.

12
HAMID, supra note 121, at 2.

13
Department of the Navy, The Commander's Handbook on the Law of Naval Operations (NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.1),
para. 4.3.2.1 (1995) (emphasis supplied). This publication was formerly designated as NWP-9 (Rev. A) [hereinafter cited as NWP I-14M and
NWP-9 (Rev.A) respectively].

14
International Court of Justice, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), merits,
1986, §§ 191 and 195; International law Commission, Report of the International Law Commission on the work of its Thirty-second session, 5
May–25 July 1980, Official Records of the General Assembly, Thirty-fifth session, Supplement No. 10, UN document A/35/10, 1980, p. 44;
Yoram Dinstein, War, Aggression and Self-Defence, 4th ed., 2005, p. 174ff; Ian Brownlie, International Law and the Use of Force by States,
1963, pp. 363ff, 366.
15
Compromis ¶ 4

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threats from or attacks by non-State actors can respond as long as the response is lawful within the

context of the jus ad bellum. 16

3. There was no unlawful or arbitrary interference with privacy and family.

Arbitrary or unlawful interference with a person’s privacy, family, home or correspondence, nor

to unlawful attacks on his honour and reputation is prohibited by the Covenant 17. Exempting citizens of

Amira who are married to citizens of Rophan and citizens of Amira who have minor children who are

citizens of Rophan and are living in Rophan 18 is in conformity with Article 17 of ICCPR.

4. There was no inhumane or degrading treatment or punishment.

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

In particular, no one shall be subjected without his free consent to medical or scientific experimentation. 19

Amirans were not subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Rophan, through the Joint Statement of its Secretary of Justice and Secretary of Interior, advised all

Amirans to voluntarily leave the country within 48 hours or face deportation. 20 Even after the lapse of the

48-hour period, Amirans are only issued notices reminding them to leave or else face detention and

16
Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, ¶ 191 (June 27) [hereinafter Military and

Paramilitary Activities]. See also Michael N. Schmitt, Cyber Operations in International Law: The Use of Force, Collective Security, Self-

Defense, and Armed Conflict, in COMMITTEE ON DETERRING CYBERATTACKS, NATIONAL RESEARCH COUNCIL, PROCEEDINGS

OF A WORKSHOP ON DETERRING CYBERATTACKS: INFORMING STRATEGIES AND DEVELOPING OPTIONS FOR U.S. POLICY

163 (2010)

17
Article 17 of the ICCPR

18
Compromis ¶ 13

19
Article 7 of the ICCPR

20
Compromis ¶ 13

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eventual deportation.21 Hence, Rophan’s issuance and implementation of the joint statement is not

violative of the ICCPR.

B. Rophan did not violate the International Covenant on Economic, Social and Cultural Rights
(ICESC).

1. Rophan did not violate the economic rights of Amirans.

22
Rophan, may determine to what extent they would guarantee the economic rights of Amirans,

who are considered as non-nationals.23 Rophan is still a developing country24 because although Rophan's

geography blessed it with abundant natural resources, it still lags behind its ICT infrastructure with both

hardware and talent still mostly being imported from other countries. 25

C. Rophan did not violate the International Convention on the Elimination of all forms of
Racial Discrimination (ICERD).

The ICERD provides that its provisions are not applicable to distinctions, exclusions, restrictions or

preferences made by a State Party to this Convention between citizens and non-citizens. The differential

treatment made against Amira by Rophan was not racial discrimination as defined by ICERD. The order

did not even target all Amirans for that matter. It should be taken into consideration also that although

there is a differential treatment against some Amirans, such distinction is permissible since the goal was

to achieve a legitimate purpose and such was based on a reasonable and objective criterion. 26 Thus,

Rophan’s action did not violate the ICERD.

21
Compromis ¶ 14

22
10 UN GAOR Annex (Agenda Item 28 Part 2) Para. 197, U.N. Doc. A/2929 (1955)

23
Article 2(3) of the ICESCR

24
Dankwa, E. V. O. "Working Paper on Article 2(3) of the International Covenant on Economic, Social and Cultural Rights." Human Rights Quarterly 9, no.
2 (1987): 230-49. Accessed January 17, 2021. doi:10.2307/762296.

25
Compromis ¶ 4

26
Human Rights Committee General Comment No. 18 Par(13)

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 1. The differential treatment was based on the basis nationality and not of race colour,
descent or national or ethnic origin therefore it falls outside the mandate of the
convention.

Under the convention27, differentiation based on nationality28 is not a prohibited ground of racial

discrimination, therefore is falls outside the Convention and the mandate of the Committee. Nationality is

the specific legal relationship between a person and a state 29, whether by birth30 or naturalization in the

case of an immigrant. National origin is the nation from which a person originates. Rophan’s order was

not discriminatory against people of Amiran origin. It even exempted certain Amirans from the

application of the order. Not satisfying the elements discrimination as defined by ICERD, Rophan’s order

was not discriminatory against Amiran nationals.

D. Rophan’s action did not constitute a violation of international law since deportation is not
consummated
A state is responsible only for violations of international law when there is breach of a  treaty or
31
the violation of another state’s territory. In order to establish that the crime of deportation 32 it must be

proved that one or more acts has been performed that produced the effect to deport or forcibly transfer the

victim. Absent such a link between the conduct and the resulting effect implies that no deportation or

forcible transfer of population has been committed. 33 The elements of crime under Article 7 (1) (d) -

Crime against humanity of deportation or forcible transfer of population include that the perpetrator

27
International Convention on the Elimination of all forms of Racial Discrimination (ICERD)

28
Boll, Alfred Michael (2007). Multiple Nationality and International Law. Martinus Nijhoff Publishers. p. 114.

29
Weis, Paul. Nationality and Statelessness in International Law. BRILL; 1979 [cited 19 August 2012].

30
Oommen, T. K. (1997). Citizenship, nationality, and ethnicity: reconciling competing identities. Cambridge, UK: Polity Press.

31
Article 2 of the International Law Commission Articles on State Responsibility defines an internationally wrongful act as conduct (an act or
omission) “attributable to the State under international law”, which conduct “constitutes as breach of an international obligation of the State”,
Article 1 insists that, “Every internationally wrongful act of a State entails the international responsibility of that State.”
32
 ICTY, Prosecutor v. Stakić, "Judgement", IT-97-24-T, 31 July 2003, para. 677-679.

33
ICC, Prosecutor v. Ruto, Koshey and Sang,"Decision on confirmation of charges", ICC-01/09-01/11, 23 January 2012, para. 245.

14
deported or forcibly transferred, without grounds permitted under international law, one or more persons

to another State or location, by expulsion or other coercive acts. 34

Rophan’s deportation order is not a punishment for a crime but a method of enforcing the return

to his own country of an alien who has not complied with the conditions upon the performance of which

the government of the nation, acting within its constitutional authority, and through the proper

departments, has determined that his continuing to reside here shall depend. 35 Hence, in issuing and

implementing the Joint Statement regarding deportation of Amiran citizens, Rophan did not act in

violation of international law. Rophan even voluntary agreed to stay the implementation of the

deportation notices until the resolution of this case on the merits. 36

34
ICTY, Prosecutor v. Krstić, ''Judgement'', IT-98-33-T, 2 August 2001, para. 521.

35
Fong Yue Ting v. United States et al. Wong Quan v. SAME. LEE JOE v. SAME. 149 U.S. 698, May 15, 1893.

36
Compromis ¶ 16

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 CONCLUSION AND PRAYER FOR RELIEF

For the foregoing reasons, the Federation of Rophan respectfully requests this Honorable Court to

adjudge and declare that Rophan, in issuing and implementing the Joint Statement regarding deportation

of Amiran citizens, did not act in violation of international law.

All of which is Respectfully Submitted

This 15th day of November 2019,
Team 2R (Counsel for the Respondent)

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