Vnmci 506 - R

VITSOL NATIONAL MOOT COURT COMPETITION ON
INTERNATIONAL LAW 2020
TEAM: VNMCI506 -R
CASE CONCERNING THE ILLEGAL IMMIGRANTS

OF HATWANA
IN THE
INTERNATIONAL COURT OF JUSTICE
LA COUR INTERNATIONALE DE JUSTICE
THE PEACE PALACE, THE HAGUE

NETHERLANDS
THE STATE OF SURJANA

(APPLICANT)
V.
THE STATE OF HATWANA

(RESPONDENT)
TABLE OF CONTENTS
MEMORIAL FOR THE RESPONDENT

INTERNATIONAL LAW
LIST OF ABBREVIATION . . . . . 3
INDEX OF AUTHORITIES . . . . . 4
STATEMENT OF JURISDICTION . . . . . 10
STATEMENT OF RELEVANT FACTS . . . . 11
STATEMENT OF ISSUES . . . . . 13
SUMMARY OF ARGUMENTS . . . . . 14
ARGUMENTS ADVANCED . . . . . 16
I. THE AMENDMENT BROUGHT TO THE ILLEGAL IMMIGRATION ACT OF
HATWANA IS VALID AND IN CONFORMITY WITH ITS OBLIGATIONS UNDER
INTERNATIONAL LAW ……..………………………………………………….….16
a) The State' act is purely within the Internal affairs of the State
b) Exercise of Sovereign Right of the State and Surjana's duty not to Intervene
c) The State had not acted in contrary to the Conventions for which they were parties to
d) The State had never acted in contravention to its State Practice
e) The State has provided Temporary Asylum
f) State's Measure to protect its citizens and to ensure National Security
g) State has never acted in discrimination and not arbitrary
II. SENIANS WHO HAVE LEFT SURJANA ARE NOT THE RESPONSIBILITY OF
HATWANA AND HATWANA CAN EXPEL THEM……………………………......20
a) Hatwana has a right to determine its citizens
b) Senians have the genuine link with the state of Surjana
c) Children born in Hatwana are not the responsibility of Hatwana
d) Mass influx : threat to Hatwana's public safety and national security
e) Hatwana cannot be responsible for Senians, In any event, Surjana is foreclosed from
making claims
f) Hatwana has the right to expel Senians
III. SURJANA IS LIABLE TO ACCEPT THE SENIANS WHO ARE BEING

DEPORTED…………………………………………………………………..…...….23
2 MEMORIAL FOR THE RESPONDENT

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a. Surjana is liable to Senians
b. Surjana have the International legal obligation

● Violation of the human rights by depriving the nationality of senians
● Violation of treaty obligations
c. Injuries to Hatwana .
d. Surjana is liable to accept the Senains.
e. Duty to receive the Nationals
● Bilateral Treaties
● Multi lateral Treaties
IV. THE PRINCIPLE OF NON-REFOULEMENT HAS NOT ATTAINED THE JUS-

COGENS STATUS AND THUS HATWANA IS NOT BARRED TO REFOULE THE
SENIANS…………………………………………………………………..………….27
a) Claw-back clause under Refugee Convention 1951
b) Derogation Permitted under a Resolution by UN Security Council
c) Lack of acceptance by International community
d) Lack of state practices
PRAYER . . . . . . 30
LIST OF ABBREVIATIONS
➔ &: And
➔ ¶: Paragraph
➔ Art.: Article

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➔ CEDAW.: Convention on the Elimination of All Forms of Discrimination Against
Women
➔ Cl.: Clause
➔ CRC.: Convention on the Rights of the Child
➔ Doc.: Document
➔ E.T.S.:European Treaty Series
➔ EC: European Council
➔ Ed.: Edition
➔ Eds.: Editors
➔ G.A. Res.: General Assembly Resolution
➔ G.A.: General Assembly
➔ Hon‟ble: Honourable
➔ IACrtHR.: Inter-American Court of Human Rights
➔ IACHR.: Inter- American Commission on Human Rights
➔ ICESCR.: International Covenant on Economic, Social and Cultural Rights
➔ ICCPR.: International Covenant on Civil and Political Rights
➔ ID.: Identification Card
➔ I.L.R.: International Legal Reporter
➔ ICJ: International Court of Justice
➔ ILC: International Law Commission
➔ Int‟l: International
➔ J.: Journal
➔ J.: Judge
➔ LNTS.: League of Nations Treaty Series
➔ p.: Page
➔ P.C.I.J.: The Permanent Court of International Justice
➔ para: Paragraph
➔ pp.: Pages
➔ Rep.: Report
➔ Res.: Resolution
➔ RIAA.: Reports of International Arbitral Awards
➔ S.C Res.: Security Council Resolution
➔ Supp.: Supplement
➔ U.K.: United Kingdom
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➔ U.N. Doc.: United Nations Document
➔ UDHR.:Universal Declaration of Human Rights
➔ U.N.T.S.: United Nations Treaty Series
➔ U.S.: United States
➔ UN: United Nations
➔ VCLT: Vienna Convention on the Law of Treaties
➔ Volume
INDEX OF AUTHORITIES
1. TREATIES AND CONVENTIONS

➢ Charter of the United Nations, 24 October 1945, 1 UNTS XVI
➢ International Covenant on Civil and Political Rights, Mar. 23, 1976, 999 U.N.T.S.
171
➢ International Covenant on Economic, Social and Cultural Rights, 16 December

1966, U.N.T.S, vol. 993, p. 3
➢ Convention on the Elimination of All Forms of Discrimination Against Women,

18 Dec. 1979, U.N.T.S, vol. 1249, p. 13
➢ Convention Relating to the Status of Stateless Persons, 28 September 1954,
U.N.T.S. vol. 360, p. 117
➢ Convention on the Reduction of Statelessness, 30 August 1961, U.N.T.S, vol. 989,
p. 175
➢ Convention Relating to the Status of Refugees, 28 July 1951, U.N.T.S. vol. 189, p.
137
➢ Convention on Certain Questions Relating to the Conflict of Nationality Law, 13
April 1930, L.N.T.S, vol. 179, p. 89, No. 4137
➢ Convention on the Elimination of All Forms of Racial Discrimination, G.A. Res.
2106(XX), U.N.Doc. A/6181 (Dec. 21, 1965)
➢ Convention on the Rights of the Child, 20 November 1989, U.N.T.S, vol. 1577, p.
3
➢ Convention on Rights and Duties of States, Dec. 26, 1933, 165 L.N.T.S. 19
➢ European Convention for the Protection of Human Rights and Fundamental

Freedoms,as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5

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➢ Protocol Relating to the Status of Refugees, 31 January 1967, U.N.T.S, vol. 606,
p. 267
➢ Statute of the International Court of Justice, June 26, 1945, 33 U.N.T.S. 993
➢ Vienna Convention on the Law of Treaties, Jan. 27, 1980, 1155 U.N.T.S. 331
2. UNITED NATIONS DOCUMENTS:

➢ UN General Assembly, Universal Declaration of Human Rights, 10 December
1948, 217 A (III)
➢ G.A.Res.36/148, U.N.Doc. A/RES/36/148 (Dec. 16, 1981)
➢ GA Res. 47/133 (1965)
➢ G.A Res. 45/151, U.N. Doc. A/RES/45/151 (Dec. 18. 1990)
➢ G.A. Res. 2131 (XX),U.N. Doc A/C. 1 /SR. 1423 (Dec.21. 1965)
➢ G.A. Res. 2625 (XXV) UN Doc A/RES/2625(XXV) (Oct.24 1970)
➢ S.C. Res. 688, U.N. Doc. S/RES/688 (Apr. 5, 1991).
➢ U.N.Doc. A/RES/45/158
➢ U.N. Doc. HCR/IP/4/Eng/REV.1
➢ UN General Assembly, Declaration on Territorial Asylum, UN
Doc.A/RES/2312(XXII) (1967)
➢ G.A. Res. 2625 (XXV) UN Doc A/RES/2625(XXV) (Oct.24 1970)
➢ U.N.H.C.R.,Article 31 of the 1951 Convention relating to the Status of
Refugees:Non-penalization, Detention and Protection (Guy S. Goodwin-Gill)
➢ U.N.H.C.R., Handbook on Procedure and Criteria for Determining Refugee
Status under the 1951 Convention and the 1967 Protocol Relating to the Status of
Refugees.
➢ Advisory Opinion on the Extraterritorial Application of Non-Refoulement
Obligations under the 1951 Convention relating to the Status of Refugees and its
1967 Protocol, 26 January 2007
➢ UNHCR Standing Committee 1997 (Jan 6) EC/47/SC/CRP.7
➢ Int’l Law Comm’n, Summary Record of 2793rd Meeting, Diplomatic Protection,
[2004] I Y.B. Int’l L. Comm’n 11,, U.N.Doc. A/CN.4/SR.2793
➢ A/CN.4/SR.2793 Summary record on Diplomatic protection (Yearbook of the
International Law Commission vol. I 2004.

INTERNATIONAL LAW
➢ Rep. of the Int’l Law Comm’n, 58th Sess., Draft Articles on Diplomatic
Protection, art. 8, U.N. Doc. A/61/10 ( 2006);
➢ U.N Doc A/CN.4/554
➢ International Law Commission, Draft Articles on Responsibility of States for
Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/56/10),
chp.IV.E.1
3. Permanent Court of International Justice
➢ AdvisoryOpinionNo.4,Nationality Decrees Issued in Tunis and Morocco, 4, PCIJ,
7 Feb. 1923
➢ The Diversion of Water from the Meuse (Netherlands v. Belgium), 1937 P.C.I.J.
(ser.A/B) No.70 (June 28)
➢ Factory at Chorzów, Germany v Poland, Jurisdiction, Judgment, PCIJ Series A No
9, ICGJ 247 (PCIJ 1927), 26th July 1927.
4. International court of justice
➢ Nottebohm Case (Liechtenstein v. Guatemala); Second Phase, 1955 I.C.J.
(April.6)
➢ Corfu Channel Case (United Kingdom v. Albania); Merits 1949 I.C.J. 4 (Apr. 9)
➢ Case Concerning Military and Paramilitary Activities In and Against Nicaragua
(Nicaragua v. United States of America); Merits, 1986 ICJ, (27 June )
➢ Continental Shelf (Libyan Arab Jarnahiriyu/ Malta), I. C.J. Reports 1985
➢ Case Concerning the Arrest Warrant of 11 April of 2000 (Congo v. Belgium),
2002 I.C.J. 3,(Feb. 14)
➢ Legality of Use of Force (Yugoslavia v. United States of America), Doc.
CR.99/24.17 (May 12, 1999)
➢ Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain);
Second Phase, (ICJ), 5 February 1970
5. Other Human Rights Courts:
➢ Case Relating to Certain Aspects of the Laws on the Use of Languages in
Education in Belgium, European Commission of Human Rights v Belgium,
Merits, App No 1474/62, App No 1677/62, App No 1691/62, App No 1769/63,
App No 1994/63, App No 2126/64, (1979-80) 1 EHRR 252, IHRL 6 (ECHR
1968), 23rd July 1968
➢ Advisory Opinion on Proposed Amendments to the Naturalization Provision of
the Constitution of Costa Rica, OC-4/84, (IACrtHR)
INTERNATIONAL LAW
➢ Spanish zone of Morocco claims 2 RIAA. A/CN.4/169(1923)
6. Municipal courts:
➢ Oppenheimer v Cattermole [1976] AC 249
➢ Stoeck v. Public Trustee, (1921) 2 Chancery 67
➢ United States v. Wong Kim Ark, 169 U.S. 649 . 1897.
➢ Louis Deraedt v. Union of India (1991) 3 SCC 554 : AIR 1991 SC 1886
➢ Stateless Person from Gaza Vs. Secretary of State for the Home
Department,England, Immigration Appeal Tribunal, 1978 (Nov.7)
➢ Central Bank of India v. Ram Narain AIR 1995 Crl LJ 152
➢ Mohammad Salimullah v. Union of India WP (C) 793/2017
➢ Case of Alpeyeva and Dzhalaganiya v. Russia (Applications nos. 7549/09 and
33330/11)
7. TEXT BOOKS
➢ JENNINGS And WATTS,OPPENHEIM'S INTERNATIONAL LAW Vol.1
PEACE (9ed.) 1992
➢ MALCOM N. SHAW, INTERNATIONAL LAW (8ed. Cambridge University
Press 2017)
➢ J.G.STARKE;I. A SHEARER, STARKE'S INTERNATIONAL LAW (11th
edn,London, Boston: Butterworths, 1994)
➢ Dr.S.P.GUPTA,INTERNATIONAL LAW AND HUMAN RIGHTS
(1ed.Allahabad Law Agency)2009.
➢ Dr.H.O.AGARWAL; INTERNATIONAL LAW AND HUMAN RIGHTS; (20

ed.Central Law Publications) 2014
➢ Dr.S.K.KAPOOR, INTERNATIONAL LAW & HUMAN RIGHTS (17ed &21ed.

Central Law Agency) 2009 & 2017
8. ARTICLES IN BOOKS,JOURNALS OR ONLINE DATABASES

➢ G Fitzmaurice, The General Principles of International Law, Considered from the
Standpoint of the Rule of Law, 92(2) RdC 1,(1957)
➢ Guy Goodwin Gill, The Language of Protection, 1 Int'l J. Refugee L. 6, 13
(1989).
➢ Recalde-Vela MJ, 'Access to Redress for Stateless Persons Under International
Law. Challenges and Opportunities' (2019) 24 Tilburg Law Review 182

INTERNATIONAL LAW
➢ Matthew J.Gibney & Randell Hansen,Deportation and the liberal state: the
forcible return of asylum seekers and unlawful migrants in Canada, Germany and
the United Kingdom, Working Paper :77 (New issues in Refugee Research)
U.N.H.C.R
➢ Clemens Hufmann, Duty to Receive Nationals? Vol.24 Issue 2 Fordham Law
Review, art 5 (1955)
➢ Henrard, K. The Shifting Parameters of Nationality. Neth Int Law Rev 65, 269–
297 (2018).
➢ Discrimination in Nationality Laws: A case study of Pakistan,Journal of Law,
Policy and Globalization Vol.66, 2017
➢ Grahl Madsen, Protection of Refugees by their Country of Origin, 11 Y.J.I.L. 392
(1985-1986);
➢ Robert D.Sloane,Breaking the Genuine Link: The Contemporary International
Legal Regulation of Nationality, Vol.50 Number 1 Winter 2009 Harvard
International Law Review
STATEMENT OF JURISDICTION
The State of Surjana and the State of Hatwana have appeared before the
International Court of Justice in accordance with Article 40(1) of the Statute of this
Court and by virtue of a Special Agreement (Compromis) for resolution of all the
differences between them ‘Concerning the illegal immigrants from the State of
Hatwana”. This court has jurisdiction over the dispute pursuant to Article 36(1) of the
Statute, as both parties shall accept the Court’s decision as final and binding and
execute it in good faith.

INTERNATIONAL LAW
STATEMENT OF FACTS
Background:
Surjana and Hatwana are countries' connected through a thin strip of land. As per
historic evidence, Surjana was invaded by Senians and ruled the ethnic viharian community.
In the 18th century, both countries' came under the rule of the Arnor empire. Since Hatwana
was infrastructurally developed during this era, many senians moved to Hatwana under their
official capacities. Hatwana gained independence in 1964 and adopted a constitutional
democracy, and their constitutional provisions exceptionally recognised senians as citizens
along with other minorities. Surjana got independence in 1975 and Surjana Republic Party
(SRP) came to power.
Senian community in Surjana:
Following decade, large scale of Senians were disenfranchised, massacred and their
properties were also taken back by the state. They were also forced to flee from Central part
to South eastern part of the country and many fled to the north eastern part, to Hatwana.
Owing to the protests by the Senians, demanding democratic and equality rights, in 1990 the
SRP and the Senians entered into an agreement to provide for a regional council with some
level of autonomy. But it was not performed. Thus outraged the senian people to protest. The

INTERNATIONAL LAW
government of Surjana amended it’s citizenship Act to ensure peace and security in 1997 and
gave:(1)The right of citizenship only the ethnic population of Surjana,(2)Added caveat to
the right of citizenship at birth to only recognize children born to a viharian father. This
further led to constant clashes between the state and senians which continued for about 10
years. An International NGO Observes of Human Rights (OHR), released a report in 2007
stating the crimes committed by Surjana government through its security force against the
senian people. Hatwana had no National Asylum or Refugee law or policy. Increased influx
of senians further upsetted local Jaiyani people of Hatwana. In October 2008, an agreement
was signed between Hatwana and Surjana Governments with the following terms: a) Surjana
state will amend it’s citizenship laws to grant Senain people citizenship.b)The state of
Hatwana will give legal recognition to the Senains who are in Hatwana as on the date of
the agreement and make all it’s efforts to naturalize them and eventually grant them
citizenship.c)The timeline for these processes would be three years after which another
meeting would take place to assess the progress and further steps.
Illegal immigrants of Hatwana:
In 2010, the newly elected Government of Hatwana stated it was not bound by the
agreement .In retaliation, the State of Surjana also abandoned all its efforts towards granting
citizenship to the Senians,cut all diplomatic ties and shut their embassy in Hatwana.In 2013,
the Government of Hatwana, stated a Nationality Determination process in the country to
give citizens IDand subsequently amended its illegal immigration Act to include “ any
person without the National ID to deemed to be illegal immigrants”.All those who were
deemed to be illegal immigrants were arrested. The Government stated that it would now
start deporting all those detainees.The President of Surjana came out with a press statement
saying that “We will not accept anyone.They are not our citizens whether they left in 1975 or
yesterday.”Concerned with the aggravating situation,Both Hatwana and Surjana agreed to
submit the matters of disputes to the International Court of Justice under a special agreement.
Hatwana and Surjana parties to the UN Charter, ICJ Statute,VCLT 1980,CRC 1989
and CEDAW 1979. Both States neither signed nor ratified 1954 Convention or 1961
Convention. Hatwana signed but not ratified 1951 UN Refugee Convention.

INTERNATIONAL LAW
STATEMENT OF ISSUES
It is respectfully requested the Court to adjudge and declare:
I.Whether the amendment brought to the Illegal Immigration Act of Hatwana is valid
and in conformity with its obligations under international law.
II. Whether Senians who have left Surjana are the responsibility of Hatwana and can
Hatwana expel them.
III. Whether Surjana is liable to accept the Senians who are being deported.
IV. Whether the Principle of Non-refoulement has attained the Jus-cogens status; can
Hatwana refoule them.

INTERNATIONAL LAW
SUMMARY OF ARGUMENTS
I. The State amended its law, which is purely within the domestic affairs of the state.
Thus in exercising the state's sovereignty other states have the duty not to intervene in the
domestic affairs of the state for the peaceful Int”l relation. The state's act is within the object
and purpose of 1951 Refugee Convention and also the State has not acted in contrary to CRC
and CEDAW.
State had acted consistent with it's custom, thus there exists no estoppel with regard to
the customary Int”l rule. The state had provided temporary asylum to the aliens which
demonstrates the humanitarian act of sharing responsibility and doesn't mean to provide
indefinite asylum. The State had adopted this step to secure its citizens from the threat of
National security. The state's act is non-discriminatory and non arbitrary.
II. Hatwana has the inherent right to determine for itself and according to its own
constitution and laws what classes of persons shall be entitled to its citizenship. Hatwana did
not accept Senians as its nationals according to genuine link theory.Jus Sanguinis mode of
acquisition in Surjana shall confer the nationality on such of their children. Mass influx of
refugees to Hatwana, threatens public safety and national security.
Surjana is responsible for the Senians because it has come to the Court with
unclean hands. It has also breached the obligations assumed under the customary Int”l law
not to create large flows of refugees. The reception of aliens is a matter of discretion, and
Hatwana is by reason of its territorial supremacy competent to exclude aliens from the whole,
or any part of its territory.Every state is and must remain master in its own house and this is
of special importance with regard to admission of aliens. Hatwana is not responsible for the
Senians who have left Surjana.
INTERNATIONAL LAW
III.All states have an International obligation towards the International community

(i.e). erga omnes and breach of that obligation creates International state liability.
Surjana's sovereignty over the Nationality laws and non-performance of agreement made
between Surjana and Hatwana, violates the International obligations and had created an
injury by mass influx of Senians in the territory of Hatwana. Thus placing state's liability on
Surjana for reparation by accepting Senians who are being deported from Hatwana
IV. The Non-refoulement principle has not attained the jus cogen status. To
attain .jus cogens status, the norm should be accepted by the whole International community
and no derogation must be permitted.
But as in the case of non-refoulement principle there is a lack of acceptance by many
civilized countries so there is a lack of state practice. It is the cornerstone of the Refugee
Convention 1951 but it also has the derogative provision [art.33(2)] and it permits the state to
derogate the principle.Thus non-refoulement principle is derogable and it has no binding
effect on the states.

INTERNATIONAL LAW
ARGUMENTS ADVANCED
I. THE AMENDMENT BROUGHT TO THE ILLEGAL IMMIGRATION ACT OF

HATWANA IS VALID AND IN CONFORMITY WITH ITS OBLIGATIONS UNDER
INTERNATIONAL LAW:
a) The State' act is purely within the Internal affairs of the State:
An illegal immigrant is a foreign person who is living in a country without having
official permission to live there1.Amending an Act is within the purview of "domestic affairs"
of the country and concerns the "sovereign right of the Parliament to make laws".The words
"solely within the domestic jurisdiction" seem rather to contemplate certain matters which,
though they may very closely concern the interests of more than one state are not in principle,
regulated by Int”l law. As regards in such matters, each state is sole judge 2. Thus intervention
amounts to invasion in the exclusive prerogatives of sovereign States.It is the rule of Int”l
rule, that the application of the principle relating to the acquisition or loss of a specific
nationality shall be governed by the laws of the state, should not go beyond the limits where
the legislation of one state encroaches upon the sovereignty of another. Hatwana had never
encroached upon the Sovereignty of another.
b) Exercise of Sovereign Right of the State and Surjana's duty not to Intervene:
The state had used a “fair,” “nondiscriminatory” and “scientific” way to identify illegal
immigrants, which is purely within the State's sovereignty. ICJ 3 and many other predominant
courts have stated that, the state may determine as to what type or class of people shall be
entitled for citizenship and it is for the internal law of the state to determine as to who is and
who is not its nationals4 in so far as it is consistent with international conventions,
international custom, and the principles of law generally recognised with regard to
nationality5.Nationality under public Int”l law is an integral element of national sovereignty.
1 “Illegal alien/immigrant.” Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-

webster.com/dictionary/illegal%20alien%2Fimmigrant.
2 Nationality Decrees Issued in Tunis and Morocco Advisory Opinion No. 4,23-24
3 Nottebohm Case (Liechtenstein v. Guatemala); Second Phase, 1955 I.C.J. (April.6) pg.20
4 U.S v. Wong Kim Ark ; Stoeck v. Public trustee ; Oppenheimer v. Cattermole
5Convention on certain questions relating to the conflict of Nationality Laws 1930 art.1

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There is no statehood without a state’s authority over its nationals, internally or
externally6."Between independent States, respect for territorial sovereignty is an essential
foundation of international relations",7and Int”l law requires political integrity also to be
respected. The State sovereignty evidently extends to the area of foreign policy.The principle
of non-intervention at first adopted "only as a statement of political intention and not a
formulation of law"8 but these essentials are repeated 9 thus setting out principles which the
General Assembly declared to be "basic principles"of Int”l law.
It is a state’s duty in Int”l law to respect the sovereignty of other states and it is their
sovereign right to decide on the admission of foreigners, these obligations has also been
assumed under the UN charter10.Further UNGA11 urges all States to respect the principle of
non-interference in the internal affairs of States and the sovereign right of peoples to
determine their political, economic and social system."The right to sovereignty and to
political independence possessed..,should be fully respected and should not in any way be
jeopardized…the principle concerning the duty not to intervene in matters within the
domestic jurisdiction of a State, principles embodied in the UN Charter and and the Charter
of the Organization of American States."12
c) The State had not acted in contrary to the Conventions for which they were parties
to:
The drafters had the measures such as administrative detention and also provisional
detention if necessary to investigate the circumstances of entry or to obtain the information
about the completely unknown person13.The State has established the detentive measures
under the due process of law and the immigrants are not criminalized and since there is a
large scale of influx which being a threat to national security, stability and prosperity 14 was
permitted under Article 31(2) of Refugee convention 1951. Thus Hatwana being a signatory
6 Kay Hailbronner,Nationality in public international law and european law pg.49

7 Corfu Channel Case (United Kingdom v. Albania); Merits 1949 I.C.J. 4 (Apr. 9) pg. 35
8 G.A. Res. 2131 (XX), the Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States
and the Protection of their Independence and Sovereignty U.N. Doc A/C. 1 /SR. 1423 (Dec.21. 1965)
9 G.A. Res. 2625 (XXV) Declaration on Principles of International Law concerning Friendly Relations and Co-
operation among states in accordance with the Charter of United NationsUN Doc A/RES/2625(XXV) (Oct.24
1970)
10 Charter of United Nations 1945 art.2 cl.7.
11G.A Res. 45/151, Respect for the principles of national sovereignty and non-interference in the internal
affairs of States in their electoral processes UN.Doc A/RES/45/151 (Dec. 18. 1990)
12 Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States
of America); Merits, 1986 ICJ, (27 June ) ¶ 288
13 U.N.H.C.R.,Article 31 of the 1951 Convention relating to the Status of Refugees:
Non-penalization, Detention and Protection (Guy S. Goodwin-Gill) ¶29
14 Ktaer Abbas Habib Al Qutaifi and another v. Union of India 1999 CRI.L.J. 919

INTERNATIONAL LAW
of the convention had not acted beyond the object and purpose of the convention.With regard
to CRC, the State didn't detain and deport the children, they are not subjected to
administrative detention and have given all the rights as acceded under CRC. With regard to
CEDAW, women are not discriminated, being a national of another country Hatwana have
treated them with the minimum standard of treatment as afforded to the aliens.
d) The State had never acted in contravention to its State Practice:
In order to deduce the existence of customary rule, the court deems it sufficient that the
conduct of state should, in general, be consistent with such rules 15. Hatwana never had the
intention to give absolute citizenship to the Senians which was expressly implied in its
constitution by providing exceptional recognition. The shared view of the Parties as to the
content of what they regard as the rule is not enough. The Court must satisfy itself that the
existence of the rule in the opinio juris of the States is confirmed by practice. 16 Thus
establishing the subjective element is not enough, in practice the state of surjana never had
the opinio juris sive necessitatis that or psychological element which aids in proving the
existence of customary international law.It is also stated that the condition in Surjana had
been substantially improved. It cannot be considered maltreatment if the state compels
individuals destitute of nationality to become naturalized or to leave the country. 17Supreme
Court of India in several instances has stated that the right to life 18 does not include the right
to reside and settle in the country.
e) The State has provided Temporary Asylum:
Granting asylum is a peaceful, humanitarian and legal act and should be understood by
the refugee’s country of origin as such;It demonstrates its willingness to share the
responsibility for protecting refugees. A state may not, in principle, protect foreign or
stateless individuals, even if they have taken up prolonged residence on its territory or if close
links of another kind exist to that state19. Territoriality forms the basis of the subjection of an
alien to the sovereignty of a state over its territory. However, the special relationship only
emerges with regard to personal sovereignty over nationals, which justifies the subjection of a
state’s nationals in a foreign country to continuing links of responsibility on the one hand and
15 Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States
of America); Merits, 1986 ICJ, (27 June ) ¶186
16Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States
of America); Merits, 1986 ICJ, (27 June ) ¶184
17 Stateless Person from Gaza Vs. Secretary of State for the Home Department,England, Immigration Appeal
Tribunal, 1978 (Nov.7)
18 Louis Deraedt v. Union of India (1991) 3 SCC 554 : AIR 1991 SC 1886
19 Doehring 1959: 59; Brownlie 2003: 658

INTERNATIONAL LAW
the granting to them of special international legal protection from their state of origin on the
other hand. The amendment is not against the purpose and object of the agreement between
the two states and also the agreement to give legal recognition and to naturalize are no longer
binding because the implementation period of those agreements had expired.
f) State's Measure to protect its citizens and to ensure National Security:
UNGA has adopted that the Member States shall seek to protect the security and well-
being of their citizens and all persons within their jurisdiction by taking effective national
measures to combat serious crimes, and shall pledge their mutual cooperation in those
efforts.20Actions taken in furtherance of the present Declaration shall fully respect the
national sovereignty and territorial jurisdiction of Member States, as well as the rights and
obligations of Member States under existing treaties and international law, and shall be
consistent with human rights and fundamental freedoms as recognized by the UN21.
g) State has never acted in discrimination and not arbitrary:
EUCHR has stated that difference in treatment is only discriminatory when it has no
objective and reasonable justification 22.There may well exist certain factual inequalities that
might legitimately give rise to inequalities in legal treatment that do not violate the principles
of justice23.I.C.J observed that,“the mere fact that States declare their recognition of certain
rules is not sufficient, for being part of customary Int”l law, and as applicable as such to those
States.”24, further "It is of course axiomatic that the material of customary Int”l law is to be
looked for primarily in the actual practice and opinio juris of States, even though multilateral
conventions may have an important role to play in recording and defining rules deriving from
custom, or indeed in developing them."25In determining arbitrariness, the Court has had
regard to whether the revocation was in accordance with the law;whether it was accompanied
by the necessary procedural safeguards, including whether the person deprived of citizenship
was allowed the opportunity to challenge the decision before courts affording the relevant
guarantees; and whether the authorities acted diligently and swiftly26
20UN General Assembly, United Nations Declaration on Crime and Public Security U.N.Doc. A/RES/51/60
art.1 1997(January 28)
21 UN General Assembly, United Nations Declaration on Crime and Public Security U.N.Doc. A/RES/51/60
art.11 1997(January 28)
22 European Commission of Human Rights v Belgium, Merits
23 Advisory Opinion on Proposed Amendments to the Naturalization Provision of the Constitution of Costa
Rica, OC-4/84, (IACrtHR) ¶ 56
24Ibid
25 Continental Shelf (Libyan Arab Jarnahiriyu/ Malta), I. C.J. Reports 1985, pp. 29-30,¶. 27.
26 Case of Alpeyeva and Dzhalagoniya v. Russia (Applications nos. 7549/09 and 33330/11) ¶50

INTERNATIONAL LAW
II.SENIANS WHO HAVE LEFT HATWANA ARE NOT THE RESPONSIBILITY OF
HATWANA AND HATWANA CAN EXPEL THEM:
a) Hatwana has a right to determine its citizens:
Hatwana has the inherent right to determine for itself and according to its own
constitution and laws what classes of persons shall be entitled to its citizenship 27 .It is an
accepted maxim of international law that every sovereign nation has the power to determine
the nationals28. It is left for determination of each state as to who are its nationals under its
own law, which law is to be recognised by other states in so far as it is consistent with
international conventions, international customs and the principles of law generally
recognized with regard to nationality.29While nationality serves vital roles in international law
(insofar as states may, for example, prescribe law governing their nationals), by far the most
significant legal consequences of nationality remain internal.30
b) Senians have the genuine link with the state of Surjana:
Hatwana did not accept Senians as its nationals according to genuine link theory.
After the ICJ’s31judgement, the international tribunals expresses a kind of doctrinal mantra
derived from that decision, a national, must evince a “genuine link” to his state of nationality.
This link, in Nottebohm’s words, denotes “a legal bond having as its basis a social fact of
attachment, a genuine connection of existence, interests and sentiments, together with the
existence of reciprocal rights and duties.”32 Senians who are in Hatwana have a genuine link
and connection of existence with Surjana only.
c) Children born in Hatwana are not the responsibility of Hatwana:
Children born to a person who did not have national ID does not become stateless. Jus
Sanguinis mode of acquisition of the parents' state shall confer on such children the right of
Nationality.33Surjana follows jus sanguinis theory so the children who are born in Hatwana
will not be led stateless. Hence Hatwana is not the responsibility for senians who left Surjana.
27 United States v. Wong Kim Ark

28 Ibid
29 Convention on the conflict of Nationality laws and Protocol on Statelessness art 1
30Robert D.Sloane,Breaking the Genuine Link: The Contemporary International Legal Regulation of
Nationality, Vol.50 Number 1 Winter 2009 Harvard International Law Review
31 Nottebohm Case (Liechtenstein v. Guatemala); Second Phase, 1955 I.C.J. (April.6)
32 Nottebohm Case (Liechtenstein v. Guatemala); Second Phase, 1955 I.C.J. (April.6) pg:24
33 Convention on certain questions relating to the conflict of Nationality Laws art 13

INTERNATIONAL LAW
d) Mass influx : Threat to Hatwana's public safety and national security:
Hatwana can't give asylum for an indefinite period because Hatwana has no asylum or
refugee law or policy. The mass influx of Senians affects the entire growth of Hatwana.The
presence of refugees, and demands on the economy, services and infrastructure add to the
extreme hardship affecting the local populations. In many instances, refugees become an
added impediment to, or risk jeopardizing, the development efforts of the host country 34.From
the moment of arrival, refugees compete with the local citizens for scarce resources such as
land, water, housing, food and medical services 35.Over time, their presence leads to more
substantial demands on natural resources, education and health facilities, energy,
transportation, social services and employment. They may cause inflationary pressures on
prices and depress wages36. There were common complaints, on the refugees in addition to
security problems in general and crime rates, theft, murder etc., in particular. Concomitantly,
other social problems such as prostitution and alcoholism are also claimed to rise in the
refugee areas37. Hatwana was affected by Senian peoples who were threat to national security
and public safety. Hatwana can't be responsible for the Senians who have left Surjana
because it is facing national security problems.
e) Hatwana cannot be responsible for Senians, in any event Surjana is foreclosed

from making claims:
Surjana is responsible for the Senians because it has come to the Court with unclean
hands38.The PCIJ39, the ICJ40, jurists41 and state practice42 have held that the principle of clean
hands precludes a State guilty of illegal conduct from making claims with regard to
illegalities by other States which have resulted as a consequence. With regard to the clean
34 EC/47/SC/CRP.7 UNHCR Standing Committee (Jan 6) Social and economic impact of large refugee
populations on host developing countries
35 Ibid at 3 (Economic Impact)
36 Ibid at 4 (Economic Impact)
37 Ibid at 14 (Social Impact)
38 Int’l Law Comm’n, Summary Record of 2793rd Meeting, Diplomatic Protection, [2004] I Y.B. Int’l L.
Comm’n 11, ¶4, U.N.Doc. A/CN.4/SR.2793
39 The Diversion of Water from the Meuse (Netherlands v. Belgium), 1937 P.C.I.J.(ser.A/B) No.70 (June 28)
40 Case Concerning the Military and Parliamentary Activities In and Around Nicaragua (Nicaragua v. United
States of America), 1986 I.C.J. 14, ¶272 (June 27) (Dissenting Opinion of Judge Schwebel)[hereinafter
Nicaragua]; Case Concerning the Arrest Warrant of 11 April of 2000 (Congo v. Belgium), 2002 I.C.J. 3, ¶35
(Feb. 14) (Dissenting Opinion of Judge Van den Wyngaert).
41 G Fitzmaurice, The General Principles of International Law, Considered from the Standpoint of the Rule of
Law, 92(2) RdC 1, 119 (1957)
42 Legality of Use of Force (Yugoslavia v. United States of America), Doc. CR.99/24, ¶3.17 (May 12, 1999)
(Oral submissions of Agent of the United States

INTERNATIONAL LAW
hands doctrine a situation in which a State complaining of a violation of international law by
another State had itself violated international law neither afforded grounds for inadmissibility
nor constituted a circumstance precluding wrongfulness.43
There exists a duty to prevent creation of large refugee flows in customary international
law. The UNGA has confirmed such a duty, in light of comments prepared by a Group of
Governmental Experts.44These flows result from lack of effective protection 45or control over
territory.46 States of origin are considered to have lost to protect, Senians fleeing from them.47
f) Hatwana has the right to expel Senians:
The reception of aliens is a matter of discretion, and every state is by reason of its
territorial supremacy competent to exclude aliens from the whole, or any part of its
territory.48Every state is and must remain master in its own house and this is of special
importance with regard to admission of aliens.49It is an accepted maxim of international law
that every sovereign nation has the power, as inherent in sovereignty and essential to self
preservation to forbid the entrance of foreigners within its dominions, or to admit them only
in such cases and upon such conditions as it may see fit to preserve. 50 Starke's opines in his
four principles, the duty of the state on the admission of aliens into the countries not of
nationality."A state is fully entitled to exclude all aliens at will." 51 Hatwana's right to exclude
aliens at will is an incident of territorial sovereignty. 52 Alien” means an individual who does
not hold the nationality of the host country or the country of residence but who is bound by a
link of nationality to the State from which he or she comes—the State of origin—or who
43 A/CN.4/SR.2793 Summary record of the 2793rd meeting Extract from the Yearbook of the International
Law Commission:- 2004 Document:-, vol. I Diplomatic protection1 (A/CN.4/537, sect. B, A/CN.4/538,2
A/CN.4/L.647 and Add.1) [Agenda item 3] Fifth report of the Special Rapporteur.
44 G.A.Res.36/148, U.N.Doc. A/RES/36/148 (Dec. 16, 1981) , International Co-operation to Avert New Flows
of Refugees: Note by the Secretary-General, ¶66(b), U.N.Doc. A/41/324 (May 13, 1986)[hereinafter Refugee
Flows]; ; S.C. Res. 688, ¶¶ 3, 9–14, U.N. Doc. S/RES/688 (Apr. 5, 1991).
45 U.N.H.C.R., Handbook on Procedure and Criteria for Determining Refugee Status under the 1951
Convention and the 1967 Protocol Relating to the Status of Refugees, ¶65, U.N. Doc. HCR/IP/4/Eng/REV.1
(Jan. 1979).
46 Guy Goodwin Gill, The Language of Protection, 1 Int'l J. Refugee L. 6, 13 (1989).
47 Rep. of the Int’l Law Comm’n, 58th Sess., Draft Articles on Diplomatic Protection, art. 8, U.N. Doc.
A/61/10 ( 2006); Grahl Madsen, Protection of Refugees by their Country of Origin, 11 Y.J.I.L. 392 (1985-
1986); International Convention on the Protection of the Rights of All Migrant Workers and Members of their
Families, art. 68, Dec.18 1990, U.N.Doc. A/RES/45/158 [hereinafter Convention on Migrant Workers.
48 Prof oppenheim,International law, vol. 1, ninth edition 1992
49 Prof.L.Oppenheim, International law, vol. 1, ninth edition 1992,pp 897-898
50 Justice gray in Nishimuna Ekiu v. US 142 US 651(1892)
52 The courts of Great Britain and The United States

INTERNATIONAL LAW
holds no nationality at all and is thus in a situation of statelessness 53 The “expulsion” might
be provisionally defined as a legal act in which a State compels an individual or group of
individuals who are nationals of another State to leave its territory. 54Every country has a right
to judge the terms upon which it will admit foreigners within its borders … The exercise of
that right is one of which no nation has any right to complain.” 55 Logically, on observation,
the right to regulate the admission includes the right of non-admission of aliens and also the
right to expel them. Every State fully enjoys that right, which is inherent in its sovereignty. It
is a principle of customary international law, which is rarely contested. 56As Oda once said:
The right of a state to expel, at will, aliens, whose presence is regarded as undesirable, is, like
the right to refuse admission of aliens, considered as an attribute of the sovereignty of the
state.57National laws, international jurisprudence and doctrine are in agreement that this right
is an absolute right of the State. 58The power of the Hatwana government to expel Senians is
absolute and unlimited and there is no provision fettering this discretion. 59 The Hatwana’s
right to expel Senians therefore falls within the realm of international law.
III. SURJANA IS LIABLE TO ACCEPT THE SENIANS WHO ARE BEING

DEPORTED:
a)Surjana is liable to the Senians:
The state by virtue of its position as an Int”l person bears responsibility for its conduct in
breach of its international obligation60 and the responsibility results in the duty to make
reparations if the obligation is not met 61. The requirements of state responsibility
are62i)International legal obligation in force as between two particular States (ii)Act or
omission which violates that obligation which is imputable to the state responsible and incur
injuries to the other states.
b)Surjana have the International legal obligation

53 EXPULSION OF ALIENS [Agenda item 7] DOCUMENT A/CN.4/554 Preliminary report on the expulsion
of aliens, by Mr. Maurice Kamto, Special Rapporteur
54 ibid.
55 Griffin,loc,cit.,p.90.
56 Tchernoff, the right to expel aliens is a normal attribute of a State exercising its civilizing function-Marginal
Opinion
57 Jennings and Watts, Oppenheim’s International Law ,"The individual in international law”, p. 482.
58 Bluntschli, Droit internationale codifié, p. 228, art. 383; Jennings and Watts, Oppenheim’s International
Law, p. 940.
59 Central Bank of India v. Ram Narain AIR 1995 Crl LJ 152
60Draft Articles on State Responsibility,ptI,Art 2 and Commentary , YBILC(1973), ii, p176
61 Spanish zone of Morocco claims, 2 RIAA. A/CN.4/169(1923)p.641
62 Spanish zone of Morocco claims, 2 RIAA,. A/CN.4/169(1923) p.157,p.615

INTERNATIONAL LAW
1. Violation of the human rights by depriving the nationality of senians:
A multilateral obligation is a legal duty whose bearer, a state is answerable before the
entire International community63 (i.e) erga omnes64. In principle, questions of nationality
fall within the domestic jurisdiction of each State. However, the applicability of a
State’s internal decisions can be limited by the similar actions of other States and by
Int”l law. States must, nonetheless, honour their obligations to other States as governed
by the rules of international law 65. Senians has their genuine and effective link 66 with
thee State of Surjana and this link creates right to Nationality.
Being a party to CEDAW, Surjana shall give women equal rights with men with respect
to Nationality of their children 67. But Surjana has amended it's citizenship Act which is
discriminatory in nature based on the ethnicity and arbitrarily deprived the Nationality of the
Senians and acted contradictory to the object assured in CEDAW. All persons are equal
before the law and are entitled without any discrimination to the equal protection of
the law. In this respect, the law shall prohibit any discrimination and guarantee to all
persons equal and effective protection against discrimination on any ground such as
race, colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status68 but the Surjana through its Security force
committed crimes against senians69 which is in the form of ethnic cleansing and made senians
to internally displace within their country, this is a pure violation of the human rights norm.
The state have the obligation to ensure and to protect the human rights of every one within its
territory or subjects to its jurisdiction70
2. Violation of treaty obligation:
Any written agreement between the two states within the International Law is the treaty71.
63 C. Tomuschat,'Obligations Arising for states without or against their will', 241 Rdc (1993-roman letterla
4)195; J.A.Frowein,'Reactions by not directly affected states to breaches of public international law',
248Rdc(1994-roman4)345; B.Simma,'from bilateralism to community interest in international
law',250Rdc(1994roman4)217.
64 Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain); Second Phase, (ICJ), 5
February (1970).
65 AdvisoryOpinionNo.4,Nationality Decrees Issued in Tunis and Morocco
66Nottebohm Case (Liechtenstein v. Guatemala); Second Phase, 1955 I.C.J. (April.6)
67Convention on the Elimination of All Forms of Discrimination Against Women 1979 art 9
68International Covenant on Civil and Political Rights1966 art 26
69 NGO Observes of Human Rights (OHR) Report, 2007.(Refer Facts)
70International Covenant on Civil and Political Rights1966 art 2 cl 1
71 McNair,'Law of Treaties' , p.4

INTERNATIONAL LAW
Treaties are legally binding, on the footing of Customary rule of Int”l law 72,which is
expressed in the form of the principle pacta sunt servanda,73 which means that States are
bound to fulfil in good faith 74 . The obligation assumed by them under treaties is one of the
the duties of the states75. This obligation is also laid down in the UN Charter 76. ICJ stated that
"The element of good faith implies that the purpose of the treaty and the intentions of the
parties in concluding the treaties should prevail over its literal application. The principle of
good faith obliges the parties to apply it in a reasonable way and in such manner that its
purpose can be realised77 " In this case failed to fulfill it's obligation under the agreement and
violated the principle of pacta sunt servanda.
The treaty should be interpreted in good faith in accordance with the ordinary meaning to
be given to the terms of the treaty in the context and in the light of the objects and purpose 78.
Being a party to VCLT, there lies an obligation upon Surjana by the Agreement made
between both states, regarding the citizenship of senians.
Although surjana had cut thier dipolamatic relationship, it does not affect the treaty between
them79 but it has abandon its obligation to give citizenship to senians and violated the
International obligations.
c)Injuries to Hatwana :
Because of the breach of obligations by the state, the senians flew to Hatwana for their
personal security. Later there is a mass influx of senians to the Hatwana. and this caused
injury to the state80 by the way of national security threat and depletion of economy. In order
to ensure the safety of it's citizens as in case of mass influx of persons, refugees may be
rejected at the Frontie or if already in the state, or if the asylum is sought, can be expelled or
compulsorily returned to their state of origin even though it is one where they may be
subjected to persecution81.
72 Oppenheim, op. cit., p.1206
73 Vienna Convention on the Law of Treaties 1980 art 26
74 Australia v. France ICJ Reports(1974) p.268.
Rights of Nationals of the United States of America in Morocco (France v. United States ofAmerica) ICJ
Reports (1952) p. 212
Minority Schools in Albania, Advisory Opinion, 1935 P.C.I.J. (ser. A/B) No. 64 (Apr. 6) pp.19-20
Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in Danzig Territory, Advisory
Opinion, 1932 P.C.I.J. (ser. A/B) No. 44 (Feb. 4) p.28
75 The Draft Declaration on Rights and Duties of the States 1949 art 13
76 UN Charter 1945 art 2 para. 2; art 103
77 Gabcikovo-Nagymaros Project (Hungary/Slovakia) 1997 I.C.J. 7, reprinted in 37 I.L.M. 162 (1998)
78Vienna Convention on the Law of Treaties 1980 art 31 cl 1
79Vienna Convention on the Law of Treaties1980 art 74
81UN General Assembly, Declaration on Territorial Asylum, UN Doc.A/RES/2312(XXII) (1967) Dec.14

INTERNATIONAL LAW
d)Surjana is liable to accept the Senians
An Act which is in violation of state's international obligation but which is lawful under
it's internal law is not thereby rendered lawful in International law 82. Failure to comply with
an international obligation constitute an international wrong83.The injured state has the right
to compel the deliquent state to fulfill the obligation or to obtain from that state reparation for
the failure. The reparation can be in any form depending upon the merits of the case 84. The
reparation must , as far as possible, wipe out all the consequences of the illegal act and re-
establish the situation which would, in all probability have exercised if that act had not been
commited85 .Restitution86in kind,so for the breach of the international obligation is concerned
Surjana has the liability to reparate by the way of acceptance of Senians from Hatwana.
e) Duty to receive the Nationals
The US Supreme Court has held that "The right to exclude or to expel all aliens, or any
class of aliens, [is] ... an inherent and in-alienable right of every sovereign.... ." 87 and it
includes deportation. And they should be accepted by the origin country from where the alien
came88. Duty to receive the nationals were evidenced in bilateral and multi lateral Treaties.
1. Bilateral treaties
The country from where the alien came from must receive or accept them when they are
being deported it is the duty towards them89. The treaty between the Germany and Belgium
provided that the "admission of the deportees or expelled must not be refused on the basis,
that the indigent expelled has lost his nationality".
2. Multilateral treaties
Multilateral treaty may be regarded as imposing a general duty on States to receive
nationals. A. "States are required to receive their nationals expelled from foreign soil who
seek to enter their territority90." B. "If a person, after entering a foreign country, loses his
82International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts,
November 2001, Supplement No. 10 (A/56/10), chp.IV.E.1 art 4
84Factory at Chorzów, Germany v Poland, Jurisdiction, Judgment, PCIJ Series A No 9, ICGJ 247 (PCIJ 1927),
26th July 1927.
85 The principles establish by International practice and in particular by the decision of Arbitration tribunal
86International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts,
November 2001, Supplement No. 10 (A/56/10), chp.IV.E.1 art 35
87 Fong Yue Ting v. United States, 149 U.S. 698, 711 (1893).
88 Moraitis v. Delany, 46 F. Supp. 425 (D.D. Md. 1942).
89 Numerous treaties especially between the nations of central Europeand of the American continent recognize
either expressly or by necessaryimplication the duty to admit nationals. The treaties between Germanyand
Denmark of December 11, 1873,- Germany and Switzerland ofNovember 13, 1909, and Germany and the
Netherlands of December17, 1904
90 The Convention on Status of Aliens, 1928 art 6

INTERNATIONAL LAW
nationality without acquiring another nationality, the State whose national he remains is
bound to admit him to its territory at the request of the State where he is residing"91
Thus the Senians mass influx into Hatwan created an injury and Surjana have the obligation
to reparate by the way of acceptance of the senains who are being deported from Hatwana
and the acceptance of the Senians is an International Duty towards Surjana under the
International law.
IV. THE PRINCIPLE OF NON REFOULEMENT HAS NOT ATTAINED THE JUS-
COGENS STATUS AND THUS HATWANA IS NOT BARRED FROM REFOULING
THEM:
There exists two criteria to identify the Jus cogen norm92. (i) Acceptance by the
International community as a whole.(ii) Recognized as a norms from which no derogation is
permitted. But the principle of non refoulement lacks the assent by the international
community as a whole and there exists some claw back clauses to this principle.
a)Claw-back clause under Refugee Convention 1951:
The principle of non-refoulement is most often referred to in the context of refugee
protection. The Refugee Convention gives codification of the non-refoulement principle
relating to the Status of Refugees93 and in many regional refugee law instruments, it is even
provided as a fundamental right of Refugees.
If we are to take only, the non derogable character of non refoulement principle, the
scope of the Article 33(2)94 exceptions are called into question. if the derogation or exception
to the principle were permitted it would not be a peremptory norm.
Art. 33(2) states as follows: "The benefit of the present provision may not, however,
be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the
security of the country in which he is, or who, having been convicted by a final judgement
of a particularly serious crime, constitutes a danger to the community of that country".
In the refugee context, the principle of non-refoulement provides incomplete protection
for a broad range of underlying norms. The text of the 1951 Convention provides protection
where a refugee’s “life and freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group, or political opinion.” 95 The phrase “life
and freedom” of a refugee has been interpreted to be synonymous with the definition of
91 The Special Protocol concerning Statelessness concluded at the Hague April 12, 1930 art 1 cl 1
92 Vienna Convention, supra note 4, at art. 53. See also Allain, supra note 2, at 538 (applying these criteria to
non-refoulement)
93 UN Refugee Convention 1951 art 33 cl 1
94 Ibid art 31(1)
95 1951 Convention, supra note 5, at art. 33(1).

INTERNATIONAL LAW
refugee status in Art. 1(a) of the Convention.96Non-refoulement therefore protects individuals
from persecution, a term which lacks a universally accepted definition.
UNHCR' balancing test can be used to weigh the degree of persecution feared against the
severity of the individual’s offence which is useful for finding the exclusion clauses under
Article 1(F) but does not circumscribe the broad use of the Article 33(2) exceptions, leaving
non refoulement incomplete97
The prohibition to non refoulement is also found in the UN General Assembly
Declaration which states that in case of mass influx of migrants, the state has the right to stop
them at the frontier to safeguard the population and the state can expelled or deport or
compulsorily returned to the country even though it is one where they subject to the
persecution.
b) Derogation Permitted under a Resolution by UN Security Council
By Resolution 1373, UN Security Council 98 removed the 'non-political 'rider from Article
1(F)(b)99. The result would be the denial of Refugee status to those who, more often than
those have fled persecution would face the wrath of a State if they were to be returned.The
member states have an obligation to carry out the decisions of the Security Council. Thus
establishes the derogable nature of the principle of non-refoulement.
c)Lack of acceptance by International community
"Safe third countries" by EU ,Recently developed concepts indicating the departure
from the principle of non-refoulement – the concept enshrined in the 1951 Refugee
Convention that refugees should not be returned to places where their lives or freedoms could
be threatened.
The so-called ‘safe third countries’ are countries to which asylum seekers may be
returned without their application having been examined and in which their application is
supposed to be examined. This breaches the primary responsibility of the state in which the
claim is lodged to provide protection.
The ‘super safe country’ concept allows EU states to refuse to examine applications of
an applicant who has travelled through a country which has ratified the Geneva Convention
and the European Convention on Human Rights and which has an asylum procedure. Since
there is no obligation on the ‘super safe third country’ to process the application, this practice
96 GOODWIN-GILL, supra note 1, at 137-38 (“[A]t the international level, no distinction is recognized
between refugee status and entitlement to non-refoulement.”).
97 Weissbrodt & Hortreiter, supra note 13, at 62.
98 UN Security Council, Security Council resolution 1373 (2001) [on threats to international peace and security
caused by terrorist acts], 28 September 2001, S/RES/1373 (2001)
99 The Refugee Convention 1951

INTERNATIONAL LAW
denies asylum seekers the most basic right to be heard and gives rise to the risk that people
will be passed indefinitely from state to state.
d)Lack of state practices:
There is a lack of state practices which was evident from the Executive Committee's 100
statement " it is deeply distrubed by violations of Internationally recognized rights of
Refugees[including] refoulement.Yet the Article 33(2) exceptions,with their low thresholds
for application, have enormous potential to undermine that protection and permit states to
violate fundamental norms of refugee protection 101. UNHCR itself 'did sign a refoulement
agreement with Tanzania'102
The principle of non refoulement has not attained the Jus Cogens status. Thus the state
can refoule the illegal immigrant in accordance with the International law and derogation is
also permitted.
PRAYER
For the foregoing reasons, the State of Hatwana respectfully requests this Honourable Court
to find, adjudge and declare that
a.The amendment brought to the Illegal Immigration Act of Hatwana is valid and in
conformity with its obligations under Int'l law.
b.Senians who have left Surjana are not the responsibility of Hatwana, it has the right to
determine its own nationals and has the right to expel them.
c.Surjana has the liability to accept the Senians because it has violated its Int'l Obligations
with regard to Citizenship Amendment Act and non-performance of Treaty Obligations.
d.The Principle of Non-refoulement has not attained the Jus Cogens status because of the lack
of recognition and it's derogable nature.
100 Executive Committee Conclusion No:89 ' Conclusion on International Protection',2000.

101 Criticism on Goodwin-Gill’s 1995 assertion that non-refoulement has not acquired the status of a jus
cogens norm based on lack of state practice.
102 G.S.Goodwin -Gill ,'Refugees: challenges to protection', Conference paper: Commemorating UNHCR at
50: past, present, and Future, 16-18 May 2000, New York, 4. Emphasis in the original

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VITSOL NATIONAL MOOT COURT COMPETITION ON

INTERNATIONAL LAW 2020

CASE CONCERNING THE ILLEGAL IMMIGRANTS

THE PEACE PALACE, THE HAGUE

THE STATE OF SURJANA

THE STATE OF HATWANA

MEMORIAL FOR THE RESPONDENT

III. SURJANA IS LIABLE TO ACCEPT THE SENIANS WHO ARE BEING

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b. Surjana have the International legal obligation

IV. THE PRINCIPLE OF NON-REFOULEMENT HAS NOT ATTAINED THE JUS-

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1. TREATIES AND CONVENTIONS

➢ International Covenant on Economic, Social and Cultural Rights, 16 December

➢ Convention on the Elimination of All Forms of Discrimination Against Women,

➢ European Convention for the Protection of Human Rights and Fundamental

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2. UNITED NATIONS DOCUMENTS:

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➢ Dr.H.O.AGARWAL; INTERNATIONAL LAW AND HUMAN RIGHTS; (20

➢ Dr.S.K.KAPOOR, INTERNATIONAL LAW & HUMAN RIGHTS (17ed &21ed.

8. ARTICLES IN BOOKS,JOURNALS OR ONLINE DATABASES

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It is respectfully requested the Court to adjudge and declare:

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III.All states have an International obligation towards the International community

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I. THE AMENDMENT BROUGHT TO THE ILLEGAL IMMIGRATION ACT OF

1 “Illegal alien/immigrant.” Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-

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6 Kay Hailbronner,Nationality in public international law and european law pg.49

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a) Hatwana has a right to determine its citizens:

b) Senians have the genuine link with the state of Surjana:

c) Children born in Hatwana are not the responsibility of Hatwana:

27 United States v. Wong Kim Ark

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e) Hatwana cannot be responsible for Senians, in any event Surjana is foreclosed

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f) Hatwana has the right to expel Senians:

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III. SURJANA IS LIABLE TO ACCEPT THE SENIANS WHO ARE BEING

a)Surjana is liable to the Senians:

b)Surjana have the International legal obligation

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100 Executive Committee Conclusion No:89 ' Conclusion on International Protection',2000.

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