ISSUE 2: WHETHER RAZZIL’S CLOSURE OF BORDERS IN LIGHT OF A PUBLIC HEALTH CRISIS

VIOLATES THE PRINCIPLE OF NON-REFOULEMENT?

The respondent humbly submits that closure of borders by Razzil in the circumstances of Public
Health Emergecy does not violates the Principle of Non- Refoulment. The respondent would contend
this on the following heads: [A] Exceptions for Non-Refoulment, [B] Refoulment on the basis of
national security does not amount to inhuman treatment, [C] Rights to be curtailed during public
health emergencies.

A. EXCEPTIONS FOR NON-REFOULMENT

The respondent humbly submits that there are exceptions to the rule of Non-Refoulement under [1]
Article 33(2) of the Convention 1and [2] there is an obligation of a state to protect their citizens.

1. Article 33(2) of the Convention

While the principle of non-refoulement is basic in character, it is recognized that there may be certain
cases in which an exception to the principle can legitimately be made. 2Thus Article 33(2) of the 1951
Refugee Convention provides that:

“The benefit of the present provision [i.e. Article 33(1) referred to above] 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.” This was also stated by the
United States’ Supreme Court in G v G [2021] UKSC 9.3

Such exception based on factors relating to the person concerned does not figure in the other
instruments - either universal or regional - mentioned above. Provision is, however, made for certain
other general exceptions, viz: "over-riding considerations of national security or in order to safeguard
the national security or protect population," 4"in order to safeguard national security or protect the
community from serious danger".5

In view of the serious consequences to a refugee of being returned to a country where he is in danger
of persecution, the exception provided for in Article 33(2) should be applied with the greatest caution.

1
The Refugee Convention 1951, art 33(1).

2
UN High Commissioner for Refugees (UNHCR), 23 August 1977, EC/SCP/2, available at:
https://www.refworld.org/docid/3ae68ccd10.html [accessed 10 June 2022].
3
G v G [2021] UKSC 9.
4
Declaration on Territorial Asylum, Article 3(2). Principles relating to the Treatment of Refugees adopted by the -Asian-
African Legal Consultative Committee at its Eighth Session in Bangkok in 1966 (Article III(2)).
5
Resolution of the Committee of Ministers of the Council of Europe of 29 September 1967 on Asylum to Persons in
Danger of Persecution.
The application of this provision requires an individualized determination by the country 6in which
the refugee is that he or she comes within one of the two categories provided for under Article 33(2)
of the 1951 Convention.7

With regard to the 'national security' exception 8(that is, having reasonable grounds for regarding the
person as a danger to the security of the country), while the evaluation of the danger remains within
the province of the national authorities, the term clearly implies a threat of a different kind than a
threat to 'public order' or even to 'the community'. In 1977, the European Court of Justice ruled that
there must be a genuine and sufficiently serious threat to the requirements of public policy affecting
one of the fundamental interests of society (Reg. vs. Bouchereau, 2CMLR 8009). It follows from state
practice and the Convention travaux preparations 10

The provisions of Article 33(2) of the 1951 Convention do not affect the host State’s non-refoulement
obligations under international human rights law, which permit no exceptions. Thus, the host State
would be barred from removing a refugee if this would result in exposing him or her, for example, to
a substantial risk of torture.11 Similar considerations apply with regard to the prohibition of
refoulement to other forms of irreparable harm. 12Here, Razzill is not exposing refugees to any
substantial risk or torture13, as they are not handing them over back to their origin country.

With regard to the interpretation of the 'particularly serious crime'-exception, two basic elements must
be kept in mind. First, as Article 33 (2) is an exception to a principle, it is to be interpreted and
implemented in a restrictive manner, as confirmed by Executive Committee Conclusion No. 7 14 where
they Recommended that, in line with Article 32 of the 1951 Convention, expulsion measures against a
refugee should only be taken in very exceptional cases and after due consideration of all the
circumstances, including the possibility for the refugee to be admitted to a country other than his
country of origin;

6
UNHCR and individual refugee status determination | Forced Migration Review Fmreview.org,
https://www.fmreview.org/statelessness/stainsby (last visited Apr 10, 2022).
7
UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the
1967 Protocol relating to the Status of Refugees, HCR/IP/4/Eng/REV.1 (January 1992).
8
Id at 2.
9
Reg. v. Bouchereau, 2CMLR 800.
10
United Nations, What are travaux préparatoires and how can I find them? - Ask DAG! Ask.un.org,
https://ask.un.org/faq/14541 (last visited Mar 10, 2022).
11
UNHCR, Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951
Convention relating to the Status of Refugees and its 1967 Protocol, ¶11, 2007.
12
Office of Human Rights Commissioner HRC, The Principle of Non-Refoulment (United Nations Human Rights
Commissioner) (2020), https://www.ohchr.org/sites/default/files/Documents/Issues/Migration/GlobalCompactMigration/
ThePrincipleNon-RefoulementUnderInternationalHumanRightsLaw.pdf (last visited Apr 10, 2022)
13
Moot Proposition.
14
Office of the United Nations High Commissioner for Refugees Division of International Protection Services,
Conclusions Adopted By The Executive Committee On The International Protection Of Refugees, December 2009.
Second, given the seriousness of an expulsion for the refugee, such a decision should involve a careful
examination of the question of proportionality between the danger to the security of the community or
the gravity of the crime, and the persecution feared. 15

As mentioned in the Article 33 of the Refugee Convention16, state that No Contracting State shall
expel or return (" refouler ") a refugee in any manner whatsoever to the frontiers of territories
where his life or freedom would be threatened…. “ the migrants were not being re-sent or deported
to their origin country by Razzil or to any other territory where they had a chance of facing
persecution. Hence, the essential of principle of non-refoulment has not been violated by Razzil.

2. Obligations of States to protect its citizens

Art. 2 of the Declaration of State, 1949 17 states that: Every State has the right to exercise jurisdiction
over its territory and over all persons and things therein, subject to the immunities recognized by
international law. Furthermore, in the same declaration, Art. 7 18
states that: Every State has the duty
to ensure that conditions prevailing in its territory do not menace international peace and order.

In the present case, the state of Razzil was bound to uphold the peace and order 19of their own state,
considering that flocking of numerous refugees have a decent potential to transmit the novel virus, for
which vaccine and immunization is still not available.

Public Health and Right to health is one of the basic human rights 20
prescribed to citizens of any
state21. Opening the gates to an unknown number of people can be devastating 22
for the subject of
states that are currently living in the boundaries. Moreover, due to lack of resources, the state will be
incapable of helping migrants 23breed properly, hence adding to their misery. Furthermore, as per the
Paragraph 33 of the Factsheet, Razzill 24
has given asylum to more than 1000 refugees, before the
breakout of the virus.

15
The Routledge Handbook of Refugees in India Routledge & CRC Press, https://www.routledge.com/The-Routledge-
Handbook-of-Refugees-in-India/Rajan/p/book/9780367531096 (last visited Mar 8, 2022).
16
Id at 1.
17
Declaration of State art. 2, 1949.
18
Declaration of State art. 7, 1949.
19
Moot Proposition.
20
UN Committee on Economic, Social and Cultural Rights. General Comment 14: The Right to the Highest Attainable
Standard of Health. Geneva, Switzerland: United Nations: 2000. UN Document E/C.12/2000/4. Available at:
http://www.unhchr.ch/tbs/doc.nsf/(symbol)/E.C.12.2000.4.En?OpenDocument. Accessed April 26, 2005.
21
Universal Declaration of Human Rights. United Nations General Assembly Resolution 217 A (III). New York, NY:
United Nations; 1948.
22
Government of India, Guidelines for Quarantine facilities COVID-19 accessed at
https://www.mohfw.gov.in/pdf/90542653311584546120quartineguidelines.pdf on 12th May 2022.
23
World Health Organisation, Migration and Health (World Health Organisation, United Nations) (2020),
https://www.who.int/europe/news-room/fact-sheets/item/migration-and-health-key-issues (last visited Apr 17, 2022).
24
Moot Proposition ¶ 33.
B. REFOULMENT ON THE BASIS OF NATIONAL SECURITY DOES NOT AMOUNT TO INHUMAN

TREATMENT

The respondent humbly submits that Refoulment on the basis of National Security does not amount to
Inhuman Treatment as [1] Supported by the Conventional and International Law Guidelines and [2]
Migrants took Refuge in neighbouring countries for a longer period of time, exempting Razzil from
obligations

1. Supported by the Conventional and International Law

Article 33(2) of the Refugee Convention states that the benefits of the first paragraph cannot be
claimed by a refugee if there are reasonable grounds to regard him as a danger to the security of the
country in which he is, or if he has been convicted of a particularly serious crime and therefore
constitutes a danger to the community of the country he is in. It is clear that through the breakout of a
novel virus, where WHO has recommended the provisional social distancing 25, anyone coming from
beyond border can be termed as a carrier of virus 26, i.e threat to the security, health and order of the
community living in the particular area.

As per the report of United Nations Group of Government Experts, States bear primary responsibility
for national security and the safety of their citizens, including in the ICT environment 27. Furthermore,
the 2013 report stated that international law, and in particular the Charter of the United Nations 28, is
applicable and is essential to maintaining peace and stability and promoting an open, secure, stable,
accessible and peaceful ICT environment.29

As per the report from the Office of Commission of Human Rights titled Emergency Measures and
Covid-19: Guidance 30Some rights, such as freedom of movement, freedom of expression or freedom
of peaceful assembly may be subject to restrictions for public health reasons31.

Article 11(2) of (ECHR) 32No restrictions shall be placed on the exercise of these rights other than
such as are prescribed by law and are necessary in a democratic society in the interests of national

25
World Health Organisation, Statement on the second meeting of the International Health Regulations (2005) Emergency
Committee regarding the outbreak of novel coronavirus (2019-nCoV) accessed at https://www.who.int/news/item/30-01-
2020-statement-on-the-second-meeting-of-the-international-health-regulations-(2005)-emergency-committee-regarding-
the-outbreak-of-novel-coronavirus-(2019-ncov) on 8th May 2022.
26
NCBI, Understanding Emerging and Re-emerging Infectious Diseases.nlm.nih.gov,
https://www.ncbi.nlm.nih.gov/books/NBK20370/ (last visited Mar 18, 2022).
27
UN Group of Governmental Experts, "Report of the Group of Governmental Experts on Developments in the Field of
Information and Telecommunications in the Context of International Security”, A/70/174," July 22, 2015.
28
UN Charter, 1946.
29
Id at 27, ¶19.
30
UNHCR, Report from the Office of Commission of Human Rights titled Emergency Measures and Covid-19: Guidance
accessed at https://www.ohchr.org/en/covid-19/covid-19-guidance on 2nd May 2022.
31
Office of Commission of Human Rights, Emergency Measures And Covid-19: Guidance (2019-20).
32
European Charter of Human Rights, art. 11 (1953).
security or public safety, for the prevention of disorder or crime, for the protection of health or
morals or for the protection of the rights and freedoms of others. This Article shall not prevent the
imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the
police or of the administration of the State.

Article 15 of (ECHR) 33says that In time of war or other public emergency threatening the life of the
nation any High Contracting Party may take measures derogating from its obligations under this
Convention to the extent strictly required by the exigencies of the situation, provided that such
measures are not inconsistent with its other obligations under international law

States have a clear human rights obligation to protect primarily their citizens -possibly even beyond
their jurisdiction- from threats to the right to life and health and thus take emergency health measures
to control the widespread of a health pandemic.34

2. Migrants took Refuge in neighbouring countries for a longer period of time, exempting
Razzil from obligations

According to the factsheet, Nai’xans who are claiming to be asylum-seekers have entered Razzil after
passing through transit countries35 and staying there for long periods of time. According to the WIAR
mentioned in paragraph 35 of the factsheet36, Razzil is not obligated to process their asylum
applications.

In its case-law on Article 4 of Protocol No. 4 37on summary returns and related scenarios, the ECHR
has distinguished a number of factual situations and the relevant tests to be applied. In N.D. and N.T.
v. Spain [GC], §§ 201 and 209-21138, the Court set out a two-tier test to determine compliance with
Article 4 of Protocol No. 4 in cases where individuals cross a land border in an unauthorised manner
39
and are expelled summarily, a test which has been applied in all later cases presenting precisely the
same scenario (Shahzad v. Hungary, §§ 59 et seq40.; and M.H. and Others v. Croatia41, §§ 294 et
seq.): Firstly42, it has to be taken into account whether the State provided genuine and effective access
to means of legal entry, in particular border procedures, to allow all persons who face persecution to
submit an application for protection,
33
European Charter of Human Rights, art. 15 (1953).
34
World Health Organisation and Office of Commission of Human Rights, Factsheet No. 31, 2020.
35
Moot Proposition.
36
Moot Proposition ¶ 35.
37
Article 4 of Protocol No. 4 of European Court of Human Rights, 2021.
38
N.D. and N.T. v. Spain [GC] §§ 201 and 209-211.
39
ECHR, Guide on Article 4 of Protocol No. 4 of European Court of Human Rights accessed at
https://www.echr.coe.int/Documents/Guide_Art_4_Protocol_4_ENG.pdf on 13th May 2022.
40
Shahzad v. Hungary §§ 59 et seq.
41
M.H. and Others v. Croatia §§ 294 et seq.
42
ECHR, Guide on the case-law of the European Convention on Human Rights, Immigration as updated on 31st December
2021 accessed at https://www.echr.coe.int/Documents/Guide_Immigration_ENG.pdf on 11th May 2022.
Secondly, where the State provided such access but an applicant did not make use of it, it has to be
considered whether there were cogent reasons for not doing so which were based on objective facts
for which the State was responsible. The absence of such cogent reasons could lead to this being
regarded as the consequence of the applicants’ own conduct, justifying the lack of individual
identification.43

C. RIGHTS TO BE CURTAILED DURING PUBLIC HEALTH EMERGENCIES.

The respondent humbly submits that there are some rights that are legally curtailed in times of
Public Health Emergency by contending firstly [1] Curtailing of Rights done in accordance with
the International Law Conventions and secondly [2] Curtailing of such rights does not amount to
human rights violations.

In extreme circumstances, "in time of public emergency which threatens the life of the nation"
(article 4(1) ICCPR44), States may take measures to derogate from the Covenant, i.e. to
temporarily suspend or adjust their obligations under the treaty, provided a number of conditions
are met. The importance of adhering to these criteria has been emphasized by inter alia the United
Nations General Assembly (e.g., United Nations General Assembly, (2005), Para. 3 45). At the
regional level, article 27 Inter-American Convention on Human Rights contain similar provisions.

The Inter-American Court of Human Right (IACtHR) has stated that "[t]he starting point for any
legally sound analysis of Article 27 46[American Convention] and the function it performs is the
fact that it is a provision for exceptional situations only. It applies solely "in time of war, public
danger, or other emergency that threatens the independence or security of a State Party" as stated
in Durand and Ugarte, 2000, para. 9947.

Furthermore, the Court has stated, in the important case of Habeas corpus in Emergency
Situations, that the American Convention "permits the suspension of certain rights and freedoms
only 'to the extent and for the period of time strictly required by the exigencies of the situation'"
(1987(a), para. 43).48

Similarly, in articulating the threshold to be crossed, the European Court of Human Rights
(ECtHR) has determined that three conditions are necessary: there must exist an exceptional

43
ECHR, Practical Guide on Admissibility Criteria as updated on 30th April 2022 accessed at
https://www.echr.coe.int/documents/admissibility_guide_eng.pdf on 11th May 2022.

44
ICCPR, Art.4.
45
Resolution adopted by the General Assembly on 16 September 2005, A/RES/60/1.
46
Inter-American Convention on Human Rights, art.27 (1969)
47
Durand and Ugarte v. Peru 2000 ¶9.
48
UNODC, Derogation in times of public emergency, Module.
 situation of crisis or emergency; which affects the whole population; and which constitutes a
threat to the organized life of the community (Lawless v. Ireland (No 3), 1961, para. 28). As with
the approach of the Inter-American Court, the ECtHR permits States some discretion - a "margin
of appreciation" in their assessment of perceived security threats and responses to them (A and
others v. the United Kingdom, 2009, paras. 171 and 17349).

Both Courts require that a formal state of emergency be declared before any suspension of rights
is made (Lawless v. Ireland (No 3), 1961, para. 2850; Zambrano Velez v. Ecuador, 2007, paras. 45-
4751). States must also report which rights have been suspended as a result of this declaration.

2. Curtailing of such rights does not amount to human rights violations.

Due to the risk of human rights abuses and rule of law violations occurring in emergency
situations, it is important that they are kept under regular review to ensure that the threshold
criteria are still met. As the Siracusa Principles envisage, "[t]he national constitution and laws
governing states of emergency shall provide for prompt and periodic independent review by the
legislature of the necessity for derogation measures." (Principle 55)52. Similarly, the importance of
such ongoing review was reiterated by the Council of Europe Parliamentary Assembly Committee
on Legal Affairs and Human Rights in its State of emergency:

The judicial supervision of derogations is necessary to preserve the rule of law, protect non-
derogable rights and prevent arbitrariness.53

Article 38(1)(b)54 of the Statute of the International Court of Justice lists “international custom, as
evidence of a general practice accepted as law”, as one of the sources of law which it applies
when deciding disputes in accordance with international law.

Customary international law is comprised of two elements: (1) consistent and general international
practice by states, and (2) a subjective acceptance of the practice as law by the international
community (opinio juris). 55

Countries like Cuba, United States, United Kingdom and India have all closed their borders due to
health emergencies and have all cited reasons of public health emergency while upholding the
right to health of their own citizens, making it a distinguished state practice.

49
A and others v. the United Kingdom 2009, paras. 171 and 173.
50
Lawless v. Ireland (No 3), 1961, para. 28.
51
Zambrano Velez v. Ecuador 2007 paras. 45-47.
52
Id at 48.
53
OHCHR, The Administration of Justice During State Emergency, Chapter 16.
54
Statute of International Court of Justice, art 38(1)(b).
55
UN, Draft conclusions on identification of customary international law, with commentaries, 2018.