Applicant AJC11362

AJC11362
PROF. N. R. MADHAVA MENON ASIAN JURAL CONCLAVE - ASIAN ROUND
2021-2022
BEFORE THE INTERNATIONAL COURT OF
JUSTICE THE PEACE PALACE
THE HAGUE, NETHERLANDS
COMPULSORY JURISDICTION
UNDER THE ARTICLE 36(2) OF THE STATUTE OF INTERNATIONAL COURT OF
JUSTICE
IN THE MATTER OF
ISLAND OF TINA
(APPLICANT)
Vs.
REPUBLIC OF CHESTER
(RESPONDENT)
UPON SUBMISSION TO THE HON’BLE INTERNATIONAL COURT OF JUSTICE
MEMORANDUM ON BEHALF OF THE APPLICANT

PROF. N. R. MADHAVA MENON ASIAN MOOTING
TABLE OF CONTENTS
List of Abbreviations...............................................................................................................IV
Index of Authorities..................................................................................................................V
Statement of Jurisdiction.......................................................................................................XIII
Statement of Facts.................................................................................................................XIV
Statement of Issues................................................................................................................XVI
Summary of Arguments.......................................................................................................XVII
Arguments Advanced.................................................................................................................1
Issue A: WHETHER THE CLAIMS MADE BY ISLAND OF TINA ARE
MAINTAINABLE BEFORE THE INTERNATIONAL COURT OF JUSTICE?................1
A.1 Both Island of Tina and Chester have accepted the compulsory jurisdiction of this
court....................................................................................................................................1
A.1.1 The present dispute is in relation to various questions of international law.........2
A.1.2 There are various facts supporting violation of an international responsibility by
Republic of Chester.........................................................................................................3
A.1.3 The dispute is in relation to the amount of compensation to be paid for
expropriating Profin’s property and detaining Mr. Cristianiniho...................................3
A.2 Island of Tina exercises diplomatic protection on Profin and Mr. Cristianiniho
before this court..................................................................................................................4
A.3 Chester is responsible for committing internationally wrongful act............................5
A.3.1 Internationally wrongful Acts committed against Profin and Mr. Cristianiniho 6
A.3.2 Chester has committed International Wrongful Acts by failing to respect its
human rights obligations.................................................................................................7
Issue B - Whether women have agency over giving informed consent and does she have an
inherent right to reproductive health under international human rights framework as well as
international law and as such action taken by Chester to protect the rights of its women
citizens are within the scope of state sovereignty?.................................................................8
B.1 International Law does not prescribe informed consent..............................................8
B.1.1 Informed Consent is waived under certain circumstances....................................9
B.1.2 Informed consent was provided by the immediate family of the subjects............9
B.1.3 State Practise evidences a relaxed approach to informed consent.......................10
B.2 International Law recognizes a right to reproductive health and Chester violated the
same..................................................................................................................................11
B.2.1 Right to Reproductive Health is an essential component of article 12 of the
ICESCR.........................................................................................................................11
B.2.2 Island of Tina did not violate the right to reproductive health............................12
MEMORIAL ON BEHALF OF THE II
B.2.3 Chester violated right to reproductive health of it’s women...............................13
B.3 Chester’s actions are not justified by sovereignty......................................................14
B.3.1 State sovereignty does not preclude abuse of power by state.............................14
Issue C - Whether Chester could confiscate Profin as it did under the powers given in the
official order and whether the President of Profin Company was lawfully detained, and his
subsequent denial of his diplomatic rights justified? In the event they are justified do they
deserve payment of compensation and apology or any other remedies in International Law?
..............................................................................................................................................15
C.1 Chester’s act of confiscation of Profin is a violation of international law.................15
C.1.1 Confiscation of Foreign Property violates human rights & international
investment law..............................................................................................................16
C.1.2 Chester’s act of Confiscation of Profin does not amount to expropriation.........17
C.1.3 Assuming but not admitting that Chester’s act amounts to expropriation, Chester
must pay Compensation to Profin.................................................................................18
C.2 Arrest, Detention and expulsion of Mr. Cristaniniho is a violation of international law
..........................................................................................................................................20
C.2.1 Arrest and Detention of Mr. Cristaniniho violates his consular rights................20
C.2.2 Arrest, Detention & expulsion of Mr. Cristianiniho violates his human rights. .22
C.3 Chester owes reparations to Island of Tina for its internationally wrongful acts......28
Prayer.......................................................................................................................................30
MEMORIAL ON BEHALF OF THE III

LIST OF ABBREVIATIONS
ABBREVIATIONS ACTUAL TERMS
& And
§ Section
¶, Para Paragraph
AC Appeal Case
Anr. Another
DG Director General
Ed. Edition
EU European Union
Govt. Government
Hon’ble Honorable
LJ Law Journal
L Rev Law Review
Ltd. Limited
No. Number
O.A. Original Application
Ors. Others
Pvt. Private
R. Review
v. Versus
Vol. Volume
MEMORIAL ON BEHALF OF THE IV

INDEX OF AUTHORITIES
CASES
1. Dickson Car Wheel Company (U.S.A.) v. United Mexican States, UNRIAA, vol. IV
(Sales No. 1951.V.1), p. 669, at p. 678 (1931)..................................................................28
2. Agip Spa v. The Government of the Popular Republic of the Congo, 67 ILR, p. 319......16
3. Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), 2007 I.C.J. 653 (Order of June 27)
..............................................................................................................................................1
4. Ahmadou Sadio Diallo, Guinea v Congo, ICJ GL No 103, [2012] ¶ 21...........................29
5. Amoco International Finance Corp. v. Islamic Republic of Iran, 6 C.T.R. 149, 168, at p.
220 (1984-11).....................................................................................................................17
6. Ashurov v Tajikistan, 2007 (1348/05)...............................................................................22
7. Avena case (Mexico v. USA) I.C.J. Reports 2004, 12; General List No. 128...................21
8. Benvenuti and Bonfant v. The Government of the Popular Republic of the Congo, ICSID
Case No. ARB/77/2. p. 345................................................................................................16
9. Breard v. Greene, 523 U.S. 371, 376 (1998)......................................................................21
10. Case concerning the Rainbow Warrior (New Zealand v. France), Report of International
Arbitration Awards 1990, vol. XX (Sales No. E/F.93. V.3), p. 266..................................29
11. Compania Del Desarrollo de Santa Elena, S.A. v. Costa Rica (2000), ICSID Case No.
ARB/96/1. 39 LL.M. 1317, 1330 (ICSID) [Santa Elena]..................................................18
12. Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, 2010 I.C.J. 639,
¶82......................................................................................................................................22
13. Freemantle v Jamaica, 2001 (625/95)................................................................................23
14. Glamis Gold, Ltd. v. United States, Award, 8 June 2009 (NAFTA).................................18
15. Great Britain v Costa Rics (1923) 1 RIAA 369.................................................................14
16. ILOMBE and SHANDWE v Democratic Republic of the Congo, 2003 (1177/03)..........22
17. Interhandel case, Switzerland v. United States of America, [1957] ICJ Rep 105...............4
18. Iran-US Claims Tribunal, Tippetts, Abbett, McCarthy, Stratton v. TAMS-AFFA, 6
IRAN- U.S. C.T.R., at 219 et seq.......................................................................................18
19. Ismailov v Uzbekistan, 2011 (1769/08).............................................................................22
20. Italy v. Venezuela (1903) 10 R.I.A.A. 528........................................................................26
21. Joshephine Oundo Ongwen v Attorney General 2016 eKLR............................................11
MEMORIAL ON BEHALF OF THE V

22. Kalamazoo Spice Extraction Company v. The Provisional military Government of

Socialist Ethiopia 86 ILR, p. 45 and 90 ILR, p, 596..........................................................16
23. LaGrand, Germany v United States, [2001] ICJ Rep 466, (2001).....................................21
24. Loizidou v. Turkey, Judgment of 18 December 1996; 108 ILR, p. 444............................19
25. Marckx, European Court of Human Rights, Series A, No. 31; 58 ILR, p. 561.................19
26. Mavrommatis Palestine Concessions, Greece v United Kingdom, P.C.I.J. Ser. A, No.2, p.
11-12....................................................................................................................................4
27. Metalclad Corporation v. United Mexican States, ICSID Case No. ARB(AF)/97/1.........18
28. Mikhail Marinich v Belarus (1502/06)..............................................................................24
29. Miranda v. Arizona, 384 US 436.......................................................................................12
30. Nazarov v Uzbekistan, 1997 (911/00)...............................................................................23
31. Phosphates in Morocco, Judgment, 1938, P.C.I.J., Series A/B, No. 74, p. 10, at p. 28.....28
32. Portorreal v Dominican Republic, 1987 (188/84)..............................................................23
33. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Rep 2010, ¶273;
............................................................................................................................................29
34. R.R v Poland – European Court of Human Rights [2011] ECHR 828..............................12
35. Schloendorff v Society of the New York Hospital, 105 NE 92 (NY 1914).........................9
36. Sporrorzg and Lonnroth, ECHR, Series A, No. 52; 68 ILR, p. 86....................................19
37. Starrett Housing Corporation v. Iran (1984), 4 Iran-US C.T.R. 122.................................18
38. Starrett Housing Corporation v. Islamic Republic of Iran (1983) 4 Iran-U.S. C.T.R. 12218
39. Towne v. Eisner, 245 U.S. 372, 376 (1918).......................................................................14
40. United States Diplomatic and Consular Staff in Tehran (Iran v. United States of
America), Judgement, ICJ Rep 1980, $95(3)(A);..............................................................29
41. United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, p.
3, at p. 29, para. 56. Cf. page 41, para. 90..........................................................................28
42. Van Alphen v. the Netherlands (305/1988) CCPR/C/39/D/305/1988...............................23
STATUTES
1. International Claims Settlement Act of 1949 (1950), 64 Stats. 199 ; (22 U.S.C. 1643)....19
RULES
1. Alberto Alvarez Jiménez (2008); “Minimum standard of treatment of aliens, fair and
equitable treatment of foreign investors, customary international law and the Diallo case
before the international court of justice’’; Journal of world investment and trade. Vol 19.
No 1......................................................................................................................................6
MEMORIAL ON BEHALF OF THE VI

TREATISES AND CONVENTIONS
1. African Charter on Human and Peoples’ Rights, 1981 Article 7(1), 26............................27
2. American Convention on Human Rights, "Pact of San Jose", Costa 1969 8(1);...............27
3. Committee on the Elimination of Discrimination against Women Article 16...................14
4. Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country
in Which They Live 1985, A/RES/40/144, Article 10.......................................................23
5. Declaration on the Human Rights of Individuals who are not nationals of the country in
which they live, 1985, Art 5(1)..........................................................................................28
6. Declaration on the Human Rights of Individuals who are not nationals of the country in
which they live, 1985.........................................................................................................27
7. European Convention for the Protection of Human Rights and Fundamentak Freedoms,
1950, ETS 5 Article 6(1)....................................................................................................27
8. European Convention on Establishment, 1956, Article 3..................................................28
9. Federal Policy for the Protection of Human Subjects 45 CFR 46.116..............................10
10. Free Trade Agreement Between the EFTA states and Singapore, 2002, Article 42..........22
11. International Code of Fair Treatment for Foreign Investments Code, 1949, Article 11(a).
............................................................................................................................................18
12. International Covenant on Civil and Political Right, 1966, Art. 9(1)..................................6
13. International Covenant on Civil and Political Right, 1966, Art. 9(2)..................................6
14. International Covenant on Civil and Political Right, 1966, Art. 9.....................................15
15. International Covenant on Civil and Political Right, 1966, General Comment 12............15
16. International Covenant on Civil and Political Right, 1966; Art.17......................................8
17. International Covenant on Civil and Political Right,1966 art. 17........................................8
18. International Covenant on Civil and Political rights, 16 December 1966, United Nations,
Treaty Series, vol. 999, p. 171 Art 10................................................................................27
Treaty Series, vol. 999, p. 171 Art 13....................................................................27, 29, 30
Treaty Series, vol. 999, p. 171 Art 14................................................................................26
Treaty Series, vol. 999, p. 171 Art 9(5).............................................................................31
Treaty Series, vol. 999, p. 171 Art 9..................................................................................27
MEMORIAL ON BEHALF OF THE VII

23. International Covenant on Economic, Social and Cultural Rights 1966 Art 6..................15
24. Statue of the international court of Justice, 1945, Art. 36(2)...............................................1
25. Statute of the International Court of Justice, Article 36(2)(d).............................................4
26. The Convention on the Elimination of All Forms of Discrimination against Women
Committee, 1979..................................................................................................................8
27. The Convention on the Elimination of All Forms of Discrimination against Women;
1979, Art.16(e).....................................................................................................................8
28. The International Covenant on Civil and Political Rights, 1966, Treaty Series, vol. 999,
Dec. 1966, p. 171. Art 9(2)................................................................................................24
29. The Universal Declaration of Human Rights, 1948, GA Res. 217 (III), Article 17..........18
30. UNITED NATIONS, Vienna Convention on Consular Rights, 1963, 596 U.N.T.S. 261,
Article 36(1)(b)..................................................................................................................22
31. UNITED NATIONS, Vienna Convention on Consular Rights, 1963, 596 U.N.T.S. 261,
Article 36(1)(b);.................................................................................................................23
UNITED NATIONS DOCUMENT
1. A./Australia, U.N.Doc.CCPR/C/59/D/560/1993, ¶9.5 (1997)...........................................22

2. Abdelhamid Taright et al. v. Algeria, Communication No. 1085/2002, U.N. Doc.
CCPR/C/86/D/1085/2002 (2006).......................................................................................24
3. Alyne da Silva Pimentel v Brazil CEDAW, UN Doc CEDAW/C/49/D/17/2008 (2011) .12
4. Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment, U.N.Doc.A/RES/43/173 (1988), Prin.32(2)..............................................23
5. Committee on Economic, Social and Cultural Rights , General Comment 22..................12
6. Committee on Economic, Social and Cultural Rights General Comment 22....................12
7. Committee On Economic, Social And Cultural Rights, General Comment 12.................12
8. Concluding Observations on Canada (2006) UN doc CCPR/C/CAN/CO/5, para 14........24
9. Concluding Observations: Sierra Leone, para. 32, U.N. Doc. CEDAW/C/SLE/CO/6
(2014)...................................................................................................................................7
10. de Morais/Angola, U.N.Doc.CCPR/C/83/D/1128/2002, ¶6.4 (2005)................................23
11. Draft articles on Diplomatic Protection, 2006, Art 9...........................................................5
12. Draft articles on Responsibility of state for internationally wrongful Acts, 2001, Article 42
..............................................................................................................................................5
MEMORIAL ON BEHALF OF THE VII

13. Draft articles on Responsibility of States for Internationally Wrongful Acts, 2001, Art. 1.
............................................................................................................................................28
............................................................................................................................................29
15. Draft articles on Responsibility of States for Internationally Wrongful Acts, 2001, Art.
31(1). RSIWA, Art. 31(1);.................................................................................................29
............................................................................................................................................29
17. Felix Kulov v. Kyrgyzstan, Communication No. 1369/2005, U.N. Doc.
CCPR/C/99/D/1369/2005 (2010).......................................................................................24
18. Giry v. Dominican Republic, Communication No.193/1985, HRC 1990 Report, Annex
IX.C....................................................................................................................................27
19. Hammel v. Madagascar, Communication No.155/1983, HRC 1987 Report, Annex VIII.A.
............................................................................................................................................26
20. HRC General Comment No.35 (2014), U.N.Doc.CCPR/C/GC/35, ¶12 ...........................22
21. HRC General Comment No.8 (1982), U.N.Doc.HRI/GEN/1/Rev.6, ¶1...........................22
22. Human Rights Committee, General Comment 15 (1986)..................................................26
23. ILC, Responsibility of States for Internationally Wrongful Acts, 2001, Supplement No.
10, UN Doc A/56/10, ["ARSIWA"], Art 2........................................................................28
24. K.L. v. Peru, Human Rights Committee, Commc’n No. 1153/2003, U.N. Doc.
CCPR/C/85/D/1153/2003 (2005) (applying the right to privacy to reproductive rights)....7
25. MAROUFIDOU V. SWEDEN, Human Rights Committee, Communication No.58/1979,
HRC 1981 Report, Annex XVII.........................................................................................26
26. Mikhail Marinich v. Belarus, Communication No. 1502/2006, U.N. Doc.
CCPR/C/99/D/1502/2006 (2010).......................................................................................24
27. Permanent sovereignty over natural resources, General Assembly resolution 1803 (XVII)
of 14 December 1962 Resolution 1803..............................................................................18
28. Schweizer v Uruguay, U.N.Doc.CCPR/C/17/D/66/1980..................................................23
29. Status of Multilateral Treaties Deposited with the Secretary-General (2002), available at
http://untreaty.un.org..........................................................................................................21
30. The Universal Declaration of Human Rights, 1948, GA Res. 217 (III), Article 2............16
31. The Universal Declaration of Human Rights, 1948, GA Res. 217 (III), Article 7............16
32. UN document A/2929, chapter VI, section 63...................................................................25
33. United Nation General Assembly Resolution 1803 [XVII] [14 December 1962], Art. 4....6
MEMORIAL ON BEHALF OF THE IX

34. Universal declaration of human rights, 1948, Art.11
35. HRC Gen. Comm. U.N. Doc. CCPR/C/GC/34,.................................................................23
OTHER AUTHORITIES
1. . Jacobs and White European Convention on Human Rights (eds. C. Orey and R. C. A.
White), 3rd edn, Oxford, 2002, chapter 15........................................................................19
2. 2 MOORE, HISTORY AND DIGEST OF THE INTERNATIONAL ARBITRATION
1865 (1898.........................................................................................................................19
3. ALLAHYAR MOURI, THE INTERNATIONAL LAW OF EXPROPRIATION AS
REFLECTED IN THE WORK OF THE IRAN-U.S. CLAIMS TRIBUNAL 70 (1994). 17
4. Barrett RJ, Parker DB. Rites of consent: negotiating research participation in diverse
cultures. Monash Bioeth Rev. 2003;22:9–26......................................................................10
5. Charlotte Campo, Sexual and Reproductive Rights within the International Human Rights
System, G F M E R G E N E VA W O R K S H O P, (2013.............................................11
6. David Chummisky, “Confucian Ethics: Responsibilities, Rights and Relationships”
EUBIOS JOURNAL OF ASIAN AND INTERNATIONAL BIOETHICS 16 no (2006)
19
............................................................................................................................................10
7. Dr Breger's case, Whiteman, Digest, vol. VIII, p. 861; R. Plender, International Migration
Law, 2nd edn, Dordrecht, 1988..........................................................................................26
8. Faden RR, Beauchamp TL. A History and Theory of Informed Consent. New York, NY:
Oxford University Press; 1986. pp. 3–330.........................................................................10
9. Fariba Asghari, Ethical Analysis of Husbands Consent to His Wife’s Treatment,
ARCHIVES OF BREAST CANCER................................................................................11
10. G Törber, The Contractual Nature of the Optional Clause (Hart Oxford 2015)..................1
11. G. Goodvin-Gill, International Law and the Movement of Persons Between States,
Oxford, 1978......................................................................................................................26
12. Great Britain v. Portugal (1875) 149 C.T.S. 363; Moore, Int. Arb., 4984.........................19
13. Indirect Expropriation and the Right to Regulate in International Investment Law, OECD
Doc. No. 2004/4, 10 (2004);..............................................................................................18
14. Kriebaum, U. and Reinisch, A., 2009. Property, right to, International Protection. Max
Planck Encyclopedia of Public International Law..............................................................6
MEMORIAL ON BEHALF OF THE X

15. M. S. McDoUGAL, H. LASSWELL &J. MILLER, THE INTERPRETATION OF

AGREEMENTS AND WORLD PUBLIC ORDER, ch. 4 (1967)....................................14
16. MANFRED NOWAK, UN COVENANT ON CIVIL AND POLITICAL RIGHTS, CCPR
Commentary, 1993.............................................................................................................24
17. Mark J. Kadish, Article 36 of the Vienna Convention on Consular Relations: A Search for
the Right to Consul, 8 MICHIGAN JOURNAL OF INTERNATIONAL LAW, Issue 4.
............................................................................................................................................21
18. McKennis AT. Caring for the Islamic patient. AORN journal. 1999;69(6):1185-96 10
19. Nihal Jayavikrama, THE JUDICIAL APPLICATION OF HUMAN RIGHTS LAW,
Cambridge University Press, 2003, Ed. 1, Pg 602.............................................................25
20. Oguz NY. Research ethics committees in developing countries and informed consent:
with special reference to Turkey. J Lab Clin Med. 2003;141:292–296.............................10
21. Policy Responses to the Economic Crisis, ORGANISATION FOR ECONOMIC CO-
OPERATION AND DEVELOPMENT, June 2009, https://www.oecd.org/sti/4298341415
22. Sanchez S, Salazar G, Tijero M, Diaz S. Informed consent procedures: responsibilities of
researchers in developing countries. Bioethics. 2001;15:398–412....................................10
23. SARAH JOSEPH, MELISSA CASTAN, THE INTERNATIONAL COVENANT ON
CIVIL AND POLITICAL RIGHTS: CASES, MATERIALS, AND COMMENTARY,
3rd Ed., 2013, pg 345........................................................................................................24
24. SHAW, INTERNATIONAL LAW (4th ed, 2003) 1206; D J Harris, " cases and materials
on international law "sweet and Maxwell pg 541 (4th ed.) 1991.......................................18
25. SHAW, MALCOLM N. INTERNATIONAL LAW. CAMBRIDGE, UK: Cambridge
University Press, 2008. Print..............................................................................................26
26. V Lamm, Compulsory Jurisdiction in International Law (Elgar Cheltenham 2014) 1
27. William J. Aceves, The Right to Information on Consular Assistance in the Framework of
the Guarantees of the Due Process of Law, Advisory Opinion OC-16/99, 94 THE
AMERICAN JOURNAL OF INTERNATIONAL LAW, para. 84 (1999).......................21
28. World Bank Guidelines on the Treatment of Foreign Direct Investment, reprinted in
Shihata, Legal Treatment of Foreign Investment: "The World Bank Guidelines",
Dordrecht, Boston, London 1993.......................................................................................16
29. Zhang Yingtao, Study on Localisation of Informed Consent in China:Trenf of Informed
Consent in Chinese Culture) 25 no 9 (2004) 13.
MEMORIAL ON BEHALF OF THE XI

MOOT PROPOSITION
1. Moot Proposition ¶ A..................................................................................................10, 15
2. Moot Proposition ¶ H....................................................................................................9, 10
3. Moot Proposition ¶ I...........................................................................................................9
4. Moot Proposition ¶ J...........................................................................................................9
5. Moot Proposition ¶ P.........................................................................................................14
6. Moot Proposition ¶ Q........................................................................................................14
7. Moot Proposition ¶ I...........................................................................................................13
8. Moot Proposition ¶ J..........................................................................................................11
9. Moot Proposition ¶ Q.........................................................................................................13
10. Moot Proposition Clarification No. 9...................................................................................8
11. Moot proposition, ¶ A..........................................................................................................8
12. Moot Proposition, ¶ A..........................................................................................................3
13. Moot proposition, ¶ H..........................................................................................................7
14. Moot Proposition, ¶ H......................................................................................................2, 3
15. Moot Proposition, ¶ P.......................................................................................................2, 3
16. Moot proposition, ¶ Q..............................................................................................3, 6, 7, 8
17. Moot Proposition, ¶ Q.................................................................................................passim
18. Moot Proposition, ¶ Q........................................................................................................22
19. Moot Proposition, ¶ R..........................................................................................................2
20. Moot proposition, ¶ S...........................................................................................................8
21. Moot Proposition, Issue 2....................................................................................................2
22. Moot Proposition, Issue 3....................................................................................................2
MEMORIAL ON BEHALF OF THE XII

STATEMENT OF JURISDICTION
The Hon’ble International Court of Justice has the jurisdiction to hear the present matter
under Article 36(2) of the Statute of the International Court of Justice
Article 36(2) of the Statute of International Court of Justice:
The states parties to the present Statute may at any time declare that they recognize as
compulsory ipso facto and without special agreement, in relation to any other state accepting
the same obligation, the jurisdiction of the Court in all legal disputes concerning:
1. The interpretation of a treaty;
2. Any question of international law;
3. The existence of any fact which, if established, would constitute a breach of an
international obligation;
4. The nature or extent of the reparation to be made for the breach of an international
obligation.
MEMORIAL ON BEHALF OF THE XII

STATEMENT OF FACTS
BACKGROUND
Republic of Chester – Is a democratic country with a boasted of GDP. The country has
maintained steady development with the introductive of several policies – make local, non-
alignment, free entry of finance and commercial establishments. The country is also
predominantly a welfare nation which is focused on serving justice to it’s large 1.35 billion
population.
Island of Tina – Is a neighbouring state to Chester. Island of Tina is a democratic country
focused towards the realisation of socialist order. The country in the recent times has
established as a controller of global resources by allowing the establishment of various
multinational companies in different parts of its territory.
Profin – Is a pharma giant established in the Island of Tina. The company is also partly
owned by Island of Tina. It is contributed to the cure for critical illnesses, thus is a widely
recognized company. The company is owned by Mr. Cristianiniho who is a citizen of Island
of Tina and a resident of Chester for the past 18 years.
DISPUTE
Profin recognized an opportunity to expand into the Republic Chester in the State of NIK.
The people of NIK showed a longer than average longevity, thus to research about it Profin
commenced trails with people of NIK after receiving due permission from the Federal
Government of Chester.
The clinical trials were entered into by many citizens of NIK, including a large number of
women. In addition to the trails, the subjects were paid a sizeable amount if they allowed a
chip to be inserted into their body for monitoring.
MEMORIAL ON BEHALF OF THE XI

The initial results of the trails were stellar. Few elderly people who could not get proper
treatment were saved with timely treatment because of the clinical trials. The trails turned out
to be a huge success and was established as the elixir. In the second phase of trials, Profin
gave the women who entered the trails a wellness pill called the Winter Stark pill. The initial
results from this were also positive as women started experiencing better immunity which
created a nation-wide demand for the pill.
Very soon, the results of the 2nd trails were being established. It was ascertained that the
consumption of the pill led to serious health consequences – their menstrual cycle got
distorted, irregular periods. The report also showed that the number of still births and
neonatal deaths increased manifold times. In addition, the ratio of female to male children fell
drastically.
The government of Chester took immediate actions to ban the consumption of the pill and
stop all the research work. In order to correct the situation created with respect to change in
ratio, the PM of Chester issued order banning the usage of contraceptive and abortion.
Following this, the President of Profin was expelled from the country and arrested seceretly
and the property of Profin was confiscated
CURRENT SITUATION
Currently, Island of Tina has approached the International Court of Justice in view of Chester
being guilty of serious violations of international law committed upon the property of Profin.
MEMORIAL ON BEHALF OF THE XV

STATEMENT OF ISSUES
ISSUE A: WHETHER THE CLAIMS MADE BY ISLAND OF TINA ARE MAINTAINABLE BEFORE
THE
INTERNATIONAL COURT OF JUSTICE?
[A.1] Both Island of Tina and Chester have accepted the compulsory jurisdiction of this
court. [A.2] Both Island of Tina and Chester have accepted the compulsory jurisdiction of
this court. [A.3] Chester is responsible for committing internationally wrongful act.
ISSUE B - WHETHER WOMEN HAVE AGENCY OVER GIVING INFORMED CONSENT AND DOES
SHE HAVE AN INHERENT RIGHT TO REPRODUCTIVE HEALTH UNDER INTERNATIONAL
HUMAN RIGHTS FRAMEWORK AS WELL AS INTERNATIONAL LAW AND AS SUCH ACTION
TAKEN BY CHESTER TO PROTECT THE RIGHTS OF ITS WOMEN CITIZENS ARE WITHIN THE
SCOPE OF
STATE SOVEREIGNTY?
[B.1] International Law does not prescribe informed consent
[B.2] International Law recognizes a right to reproductive health and Chester violated the same
[B.3] Chester’s actions are not justified by sovereignty
ISSUE C - WHETHER CHESTER COULD CONFISCATE PROFIN AS IT DID UNDER THE POWERS
GIVEN IN THE OFFICIAL ORDER AND WHETHER THE PRESIDENT OF PROFIN COMPANY
WAS
LAWFULLY DETAINED, AND HIS SUBSEQUENT DENIAL OF HIS DIPLOMATIC RIGHTS
JUSTIFIED? IN THE EVENT THEY ARE JUSTIFIED DO THEY DESERVE PAYMENT OF

COMPENSATION AND APOLOGY OR ANY OTHER REMEDIES IN INTERNATIONAL
LAW?
[C.1] Chester’s act of confiscation of Profin is a violation of international law
[C.2] Arrest, Detention and expulsion of Mr. Cristaniniho is a violation of international law
[C.3] Chester owes reparations to Island of Tina for its internationally wrongful acts

SUMMARY OF ARGUMENTS
ISSUE A: WHETHER THE CLAIMS MADE BY ISLAND OF TINA ARE MAINTAINABLE BEFORE
THE
INTERNATIONAL COURT OF JUSTICE?
It is contented that all the claims made by Island of Tina are maintainable before the
international court of Justice by virtue of Article 36 paragraph 2 of the Statute of the court
under which both the parties have accepted the compulsory jurisdiction of the Court and have
duly signed and deposited with the Secretary-General of the United Nations.
SCOPE OF STATE SOVEREIGNTY?
It is contended that the doctrine of informed consent is not prescribed by international law
and can be waived under certain circumstances. Consent for the trails were given by the close
family members, thus valid. Right to reproductive health is included under international
human rights such as ICCPR, CESCR, Chester is guilty of violating women’s reproductive
rights. Thirdly, blanket immunity of state sovereignty cannot be utilized for all actions by
Chester.
ISSUE C - WHETHER CHESTER COULD CONFISCATE PROFIN AS IT DID UNDER THE POWERS
GIVEN IN THE OFFICIAL ORDER AND WHETHER THE PRESIDENT OF PROFIN COMPANY
WAS LAWFULLY DETAINED, AND HIS SUBSEQUENT DENIAL OF HIS DIPLOMATIC RIGHTS
JUSTIFIED? IN THE EVENT THEY ARE JUSTIFIED DO THEY DESERVE PAYMENT OF
COMPENSATION AND APOLOGY OR ANY OTHER REMEDIES IN INTERNATIONAL LAW?
It is humbly contended that Confiscation of Property by Chester’s act is violative of human
rights, foreign investment laws and Chester must be required to pay compensation as per
international customary law. Arrest, Detention and expulsion of Mr. Cristaniniho is a
violation of consular rights and International Covenant of Civil and Political rights.
Furthermore, Chester owes reparations to Island of Tina for its internationally wrongful acts.

ARGUMENTS ADVANCED
ISSUE A: WHETHER THE CLAIMS MADE BY ISLAND OF TINA ARE

MAINTAINABLE BEFORE THE INTERNATIONAL COURT OF
1. This is humbly contended before this hon’ble court that claims made by Island of Tina
with respect to violations of international law are maintainable before this court. This
contention would be proved by way of following arguments: [A.1] Both Island of Tina and
Chester have accepted the compulsory jurisdiction of this court. [A.2] Island of Tina
exercises diplomatic protection on Profin and Mr. Cristianiniho before this court [A.3]
Chester is responsible for committing internationally wrongful act.
[A.1] BOTH ISLAND OF TINA AND CHESTER HAVE ACCEPTED THE COMPULSORY
JURISDICTION OF THIS COURT.
2. It is contented before this hon’ble court that Island of Tina and Chester have accepted the
compulsory jurisdiction of the court under Article 36 paragraph 2 of the statute of the
international court of Justice1. According to Article 36(2) of the statue, the parties to the
statute can recognize compulsory jurisdiction of the court in relation to any other state
giving its acceptance to same obligation in all legal disputes which are related to
interpretation of a treaty, question of international Law, presence of any fact that, if
proven, would result in a violation of an international responsibility and the type and scope
of the restitution to be paid in the event of a breach of an international obligation.2.
3. The four kinds of conflicts were first proposed at the Hague Conference in 1907, with the
purpose of allowing states to choose which ones they wanted to present to the Court.3
1
Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), 2007 I.C.J. 653 (Order of June 27).
2
Statue of the international court of Justice, 1945, Art. 36(2).
3
V Lamm, Compulsory Jurisdiction in International Law (Elgar Cheltenham 2014), G Törber, The Contractual
Nature of the Optional Clause (Hart Oxford 2015).
MEMORIAL ON BEHALF OF THE 1

4. Since jurisdiction of the international court of justice is consensual, Island of Tina in the
present dispute is relying on the declarations accepting the compulsory jurisdiction of the
Court which both Parties to this dispute have duly signed and deposited with the
Secretary- General of the United Nations4.
[A.1.1] The present dispute is in relation to various questions of international law
5. It is contented that the present dispute deals with the question of international law. In the
present case, firstly the reproductive rights of the women in general are in questions and
whether or not she has the right to informed consents in matters of their reproductive
health5. These two questions of international law forms as an important aspect for women
in general and therefore needs to be taken into consideration by the court. Further, the
present dispute deals whether or not compensation be given to foreign company while
being expropriated6 and diplomatic protection of Mr. Cristianiniho.
6. These questions of international law find its importance in the present case due to various
internationally wrongful acts committed by Chester. Firstly, Republic of Chester has
violated the reproductive rights of all women citizens by banning all sorts of
contraceptives and complete prohibition of termination of pregnancy.7 Second, it
arbitrarily took over the company Profin which is established in Island of Tina8 without
providing them any compensation9 and subsequently detained a national of Profin without
legal recourse.10
7. Therefore, the present case between Republic of Chester and Island of Tina is
maintainable under Article 36(2)(b) of the statute11 as it is in relation to various questions
of international law.
4
Moot Proposition, ¶ R.
5
Moot Proposition, Issue 2.
6
Moot Proposition, Issue 3.
7
Moot Proposition, ¶ P.
8
Moot Proposition, ¶ H.
9
Moot Proposition, ¶ Q.
10

11
Statute of the International Court of Justice, 1945, Art. 36(2)(b).

[A.1.2] There are various facts supporting violation of an international responsibility by

Republic of Chester
8. It is contented that there exist various facts in the present case which proves that there has
been violation of international responsibility by Republic of Chester hampering the
interests of island of Tina.
9. Firstly, there has been violation of patent rights of company Profin, in which there is
sizeable investment by island of Tina12, by Chester for threatening to stop clinical trials by
the federal government if licensing of “Winterstark” pill is opposed by Profin.13 Second,
Republic of Chester prohibited sale of Winterstark pill and subsequently banned all
contraceptives and ordered for complete prohibition on termination of medical pregnancy
for women14 violating their reproductive rights. Third, Chester secretly arrested and
detained the President and largest shareholder of Profin, Mr. Cristianiniho who was also a
national of Island of Tina, without any legal recourse. 15 Lastly, it arbitrarily took over
company Profin without any compensation resulting in violation of its right to
compensation against expropriation16.
10. Therefore, it is submitted that in the present case there exists such facts which support that
there is violation of international responsibility by Republic of Chester.
[A.1.3] The dispute is in relation to the amount of compensation to be paid for

expropriating Profin’s property and detaining Mr. Cristianiniho
11. Under Article 36(2)(d) of the statue17, the court can exercise compulsory jurisdiction if the
dispute is related to the amount of compensation or reparation that needs to be provided in
event of breach of international obligation or responsibility.
12
Moot Proposition, ¶ H.
13
Moot Proposition, ¶ A.
14
15
Moot proposition, ¶ Q.
16
17
Statute of the International Court of Justice, 1945, Article 36(2)(d).

12. Compensation on Expropriation of foreign property is an established customary
international law18. Further there are various international conventions and treaties which
prohibit arbitrary arrest and detention of any foreign national19.
13. However, in the present case, no compensation has been given to Profin after it has been
taken over by the government.20 Hence this dispute deals with the amount of compensation
to be given to Profin for confiscating its property by the Republic of Chester. The present
case as well deals with the compensation or reparation to be made against arbitrary arrest
and detention of Mr Cristianiniho who is a national of Island of Tina.
14. Therefore, this dispute is maintainable under Article 36(2)(d) of the statute of ICJ as the
present dispute is in relation to type and scope of the restitution to be paid by Republic of
Chester for violating its international obligations.
[A.2] ISLAND OF TINA EXERCISES DIPLOMATIC PROTECTION ON PROFIN AND MR.

CRISTIANINIHO BEFORE THIS COURT
15. It is submitted before this hon’ble court that diplomatic protections find its applicability in
the present case. Diplomatic Protection is a recognized customary international law which
has been reiterated by Permanent Court of International Justice and International Court of
Justice in multiple cases21.
16. Under Article 4 of draft articles on diplomatic protection, 2006, a state can exercise
diplomatic protection for natural persons who have acquired their nationality. 22 Further
Article 12 provides that a state can exercise diplomatic protection in case of direct injury
caused to the shareholders of the corporation which is incorporated in that state. On the
other
18
Refer paragraph 17.
19
Refer paragraph 14, 15.
20
21
Mavrommatis Palestine Concessions, Greece v United Kingdom, P.C.I.J. Ser. A, No.2, p. 11-12.; Interhandel
case, Switzerland v. United States of America, [1957] ICJ Rep 105.

22
International Law Commission, Draft articles on diplomatic protection, 2006, Art.

hand, under Article 9 of the draft articles on diplomatic protection, 2006, a state can
enforce diplomatic protection for a cooperation if it is incorporated under the laws of that
state23.
17. In the present case, Island of Tina by virtue of Article 4 and 12 of the diplomatic
protection, 2006 has lawful right to exercise diplomatic protection for Mr Cristianiniho
who is a national of Island of Tina and largest shareholder of the company Profin24 which
is incorporated under the law of the Island of Tina.25
18. At the same time, Island of Tina where the company Profin has been incorporated has the
lawful right to enforce diplomatic protection for Profin by virtue of Article 9 of the draft
articles on Diplomatic Protection, 2006.
19. Therefore, it is submitted before this hon’ble court that island of Tina by virtue of
customary international law of diplomatic protection has the lawful right under the draft
articles on diplomatic protection to exercise diplomatic protection for Mr. Cristianiniho
and company Profin.
[A.3] CHESTER IS RESPONSIBLE FOR COMMITTING INTERNATIONALLY WRONGFUL ACT
20. It is submitted before this hon’ble court that by virtue of Draft articles on Responsibility of
state for internationally wrongful Acts, 2001, (hereinafter referred to as ARSIWA, 2001)
Island of Tina which being the injured state can invoke the responsibility of Republic of
Chester for committing internationally wrongful act on Island of Tina’s interest in Chester
21. Under Article 42 of the ARSIWA, 2001, if an obligation of a state is breached, injured
State has the right to claim the responsibility of that State as an aggrieved State26.
23
Draft articles on Diplomatic Protection, 2006, Art 9.
24
25
Moot proposition, ¶ H.

26
Draft articles on Responsibility of state for internationally wrongful Acts, 2001, Article 42.

[A.3.1] Internationally wrongful Acts committed against Profin and Mr. Cristianiniho
22. The principle that aliens should be treated in accordance with a minimum standard of
civilization which forms a part of customary international law is violated in the present
case27.
23. According to Article 9 (1) and 9 (2) of the international covenants on civil and political
rights, 1966, no person shall be subjected to arbitrary arrest or detention and shall not be
deprived of his liberty except for procedure established by law 28. Further it provides that
such person if arrested shall be informed of reason of arrest and charges29. Under
Universal declaration of human rights, no one can should be arrested or detained unless
proven guilty upholding the principle of presumption of innocence and the rights to fair
trial and defend oneself30
24. However, in the present case Mr. Cristianiniho, a national of Island of Tina has been
arbitrarily arrested and even deprived of legal recourse of any sort31 violating Universal
declaration of human rights and International Covenant on Civil and Political Rights.
25. As of 2005, there had been more than 2500 BITs that have been concluded and several
multilateral agreements wherein express guarantee against uncompensated expropriation
of a foreign property has been provided32. Expropriation by state on grounds even of
public interest and security of security require the state to provide appropriate
compensation to the owner in accordance with rules in force and international law33.
27
Alberto Alvarez Jiménez (2008); “Minimum standard of treatment of aliens, fair and equitable treatment of
foreign investors, customary international law and the Diallo case before the international court of justice’’;
Journal of world investment and trade. Vol 19. No 1.
28
International Covenant on Civil and Political Right, 1966, Art. 9(1).
29
International Covenant on Civil and Political Right, 1966, Art. 9(2).
30
Universal declaration of human rights, 1948, Art.11.
31
32
Kriebaum, U. and Reinisch, A., 2009. Property, right to, International Protection. Max Planck Encyclopedia of
Public International Law.
33
United Nation General Assembly Resolution 1803 [XVII] [14 December 1962], Art. 4.

26. In the present case, however, ‘Profin’, a company incorporated in Island of Tina having
sizeable investment by the state34, has been arbitrarily taken over by Republic of Chester
without any compensation35. Hence it is in violation of the customary international law
with respect to award of appropriate compensation while expropriating a foreign property.
27. Therefore, it is submitted that Republic of Chester has committed various internationally
wrongful acts against company Profin and Mr. Cristianiniho giving lawful right to Island
of Tina to invoke responsibility of Chester.
[A.3.2] Chester has committed International Wrongful Acts by failing to respect its human
rights obligations
28. Article 16 (e) of the Convention on the Elimination of Discrimination against Women
(hereinafter referred to as CEDAW) provides for prohibition of discrimination against
women in all matters relating to family relations which includes right to decide on the
matters and spacing of children36. According to CEDAW committee, reproductive rights of
women include right of a woman to autonomous decision-making about their health and
deciding freely upon number and spacing of their children37.
29. Moreover, it violates right to privacy of a woman which finds it mention under Article 17
of the international Covenant on civil and Political Rights38. Right to privacy as
highlighted by human rights committee is considered an important part of ensuring
protection of women’s reproductive choices39.
34
Moot proposition, ¶ H.
35
36
The Convention on the Elimination of All Forms of Discrimination against Women; 1979, Art.16(e).
37
The Convention on the Elimination of All Forms of Discrimination against Women Committee, 1979;
Concluding Observations: Sierra Leone, para. 32, U.N. Doc. CEDAW/C/SLE/CO/6 (2014).
38
International Covenant on Civil and Political Right, 1966; Art.17.
39
International Covenant on Civil and Political Right,1966 art. 17; K.L. v. Peru, Human Rights Committee,
Commc’n No. 1153/2003, U.N. Doc. CCPR/C/85/D/1153/2003 (2005) (applying the right to privacy to
reproductive rights).

30. In the present case, all the citizens are subjected to arbitrary blanket ban on contraceptive
and termination of pregnancy40. It is to be noted that the ban was on the overall population
of 1.35 billion41 of Republic of Chester and not limited only to the women who took winter
shark medicine42. This resulted in huge number of women seeking asylum in those parts of
Shambala that are under the control of island of Tina and thereby causing a threat of
refugee crisis43.
31. Therefore, it is submitted that Republic of Chester has committed internationally wrongful
act against reproductive rights of women and its responsibility can be invoked in the
present case.
SCOPE OF STATE SOVEREIGNTY?
32. The above contention can be established in a threefold manner, [B.1] International Law
does not prescribe informed consent, [B.2] International Law recognizes a right to
reproductive health and Chester violated the same, [B.3] Chester’s actions are not justified
by sovereignty.
B.1 INTERNATIONAL LAW DOES NOT PRESCRIBE INFORMED CONSENT
33. The above contention can be established in a threefold manner, [B.1.1] Informed Consent
is waived under certain circumstances, [B.1.2] Informed consent was provided by the
immediate family of the subjects, [B.1.3] State Practice evidences a relaxed approach to
informed consent
40
41
Moot proposition, ¶ A.
42
Moot Proposition Clarification No. 9.
43
Moot proposition, ¶ S.

B.1.1 Informed Consent is waived under certain circumstances
34. Protection of human subjects allows consent procedure which does not include, or which
alters some or all of the elements of informed consent provided that44 –
a. The research or demonstration is designed to study, evaluate or otherwise examine
public benefit or service programmes.
b. The research involves no more than minimum risk to the subjects.
c. The waiver or alternation will not adversely affect the welfare of the subjects
35. In the present case, it was not mandatory for Profin to obtain informed consent from the
women subjects because the trial conducted by the company was aimed at developing a
biological compound that increased general life expectancy.45 In addition the chip would
alert in case of immediate need of medical assistance. Thus, the research was designed for
public benefit.46 Secondly, the research involved very low and minimum subjection to risk
as ascertained by the results of the first and second rounds of trails.47
B.1.2 Informed consent was provided by the immediate family of the subjects
36. Thirdly, the consent to the trials were given by the immediate family members of the subjects.
Familial relationships are believed to have a moral duty towards each other. Both the
competent patient and his family members are entitled to exercise the right to informed
consent and dual consent to medical treatment. 48 In the opinion of most doctors, consent of
the family members of a competent patient seems more important.49
37. Yet another argument will be that the large number of elderly or uneducated patients though
competent lack the ability to correctly understand what doctors are saying, let alone make a
44
Federal Policy for the Protection of Human Subjects 45 CFR 46.116.
45
Moot Proposition ¶ H.
46
Moot Proposition ¶ I.
47
Moot Proposition ¶ J.
48
Zhang Yingtao, Study on Localization of Informed Consent in China:Trenf of Informed Consent in Chinese
Culture) 25 no 9 (2004) 13.
49
Schloendorff v Society of the New York Hospital, 105 NE 92 (NY 1914).

medical decision.50 An efficient alternative is to let their educated family members make
decisions on their behalf.
B.1.3 State Practise evidences a relaxed approach to informed consent
38. In most developed countries, informed consent is established and regulated. 51 However,
subjected to cultural, socioeconomic and educational factors – informed consent is not
widely prevalent in developing countries.52
39. Developing economies are heavily influenced by communal decision making.53 Such
societies that follow communal decision place less emphasis on individual autonomy in
areas concerning health.54
40. NIK is a state in Chester, though Chester boasts of its high GDP, it is still a developing
nation.55 Moreover, the State of NIK is bordered by Shambala which is a religious and
spiritual nation and thus a developing country. 56Due to the close proximity of Shambala
and NIK, the latter is drastically influenced by the culture and tradition of Shambala.
41. Assuming from the description of NIK for NIK to be a backward developing state,
community system might strongly persist in the state. Thus, all decisions are taken as
community for the common benefit of the people. Consenting to undergo trails can be
identified to be one such decision taken collectively by the people of NIK.
42. In certain male dominant societies, it is necessary to obtain the husband’s consent to his
wife’s treatment for cultural reasons.57 Though it is not a mentioned law, most middle
eastern
50
David Chummisky, “Confucian Ethics: Responsibilities, Rights and Relationships” EUBIOS JOURNAL OF
ASIAN AND INTERNATIONAL BIOETHICS 16 no (2006) 19.
51
Faden RR, Beauchamp TL. A History and Theory of Informed Consent. New York, NY: Oxford University
Press; 1986. pp. 3–330.
52
Sanchez S, Salazar G, Tijero M, Diaz S. Informed consent procedures: responsibilities of researchers in
developing countries. Bioethics. 2001;15:398–412.
53
Barrett RJ, Parker DB. Rites of consent: negotiating research participation in diverse cultures. Monash Bioeth
Rev. 2003;22:9–26.
54
Oguz NY. Research ethics committees in developing countries and informed consent: with special reference to
Turkey. J Lab Clin Med. 2003; 141:292–296.
55
Moot Proposition ¶ A.
56
Moot Proposition ¶ H.

57
McKennis AT. Caring for the Islamic patient. AORN journal. 1999;69(6):1185-96.

countries respect this tradition.58 It is crucial to improve access to health in many societies.
Many groups of people do not have access to healthcare due to cultural reasons and social
stigma. Providing health care should be prioritized in all facets thus cultural reasons should
be duly respected.
43. In the above case, NIK is a place near Shambala where elderly people were not able to get
proper medical attention or afford expensive medical care 59. Thus the immidiet need of
medical facilities needs to be prioritized over obtaining informed consent from women,
which might tend to be a stigmatized process resulting in delay of medical services.
B.2 INTERNATIONAL LAW RECOGNIZES A RIGHT TO REPRODUCTIVE HEALTH AND CHESTER

VIOLATED THE SAME
44. This contention can be established in a three-fold manner, [B.2.1] Right to Reproductive
Health is an essential component of article 12 of the ICESCR, [B.2.2] Island of Tina did not
violate the right to reproductive health [B.2.3] Chester violated reproductive rights of its
women
B.2.1 Right to Reproductive Health is an essential component of article 12 of the ICESCR
45. Reproductive health is clearly contained within the right to health, but also has a strong
connection with other human rights that are interrelated and complementary. 60 Interests
relating to reproductive health can therefore be safeguarded, not just on the basis of the right
to health, but through multiple specific human rights recognised in international human
rights law, as reproductive health occupies an interacting position between several special
rights.61
58
Fariba Asghari, Ethical Analysis of Husbands Consent to His Wife’s Treatment, ARCHIVES OF BREAST
CANCER.
59
Moot Proposition ¶ J.
60
Charlotte Campo, Sexual and Reproductive Rights within the International Human Rights System, G F M E R
G E N E VA W O R K S H O P, (2013).

61
Joshephine Oundo Ongwen v Attorney General 2016 eKLR.

46. Reproductive freedom is essentially a part of fundamental human right to health. “Right to
Health as defined in Article 12.1 is interpreted to include determinants of health such as
access to safe and potable water and adequate sanitation includes sexual and reproductive
health”62
47. The right to reproductive health can be further broken down into freedoms and entitlements.
63
Freedom refers to the right to be free from discrimination and the freedom to govern one’s
own body including sexual and reproductive freedom.64
48. Committee on Economic, Social and Cultural Rights recommends States to repeal or
eliminate laws, policies and practices that criminalize, obstruct or undermine access by
individual or a particular group to sexual and reproductive health. 65 Further denial of legal
reproductive care amounts to violation of human rights.66 According to CEDAW, States are
obligated to address and reduce maternal mortality to ensure women rights to safe
motherhood, meeting specific and distinctive health needs of women.67
49. Thus, it is submitted that the women’s right to health is an indispensable part of internal
humanitarian law.
B.2.2 Island of Tina did not violate the right to reproductive health
B.2.2.1 In any case, Island of Tina’s acts were in the interests of public welfare
50. Salus Populi Est Suprema Lex translates to public welfare is the highest law. 68 Actions in
furtherance of public interest will always prevail over the interests of private individuals.
The principle is based on the implied agreement of every member of a society that his
private rights and welfare, shall in certain cases of necessity, yield to that of the overall
community’s interests. A private individual’s property, liberty and life shall under certain
circumstances be
62
Committee On Economic, Social And Cultural Rights, General Comment 1966 12.
63
Committee on Economic, Social and Cultural Rights General Comment1966 22.
64
Committee on the Elimination of Discrimination against Women 16.

65
Committee on Economic, Social and Cultural Rights , General Comment 22.
66
R.R v Poland – European Court of Human Rights [2011] ECHR 828.
67
Alyne da Silva Pimentel v Brazil CEDAW, UN Doc CEDAW/C/49/D/17/2008 (2011).
68
Miranda v. Arizona, 384 US 436.

placed in jeopardy or may even be sacrificed for public good. This being an emanation of
sovereignty, is an obligation of the state to assume.
51. In time of public emergency which threatens the life of the nation and the existence of
which is officially proclaimed, the States Parties to the present Covenant may take measures
derogating from their obligations under the present Covenant to the extent strictly required
by the exigencies of the situation, provided that such measures are not inconsistent with
their other obligations under international law.69
52. Profin was established in the State of NIK to develop an biological compound that would
increase life expectancy of individuals, moreover the establishment of Profin was aimed at
making health care easy. The compound was made to be available at the international
market, allowing people from all countries to utilize and benefit from it. 70 Thus, the State is
justified from upholding its obligations to the covenant and prioritizing the public welfare
over reproductive rights of individuals.
B.2.3 Chester violated right to reproductive health of it’s women
53. The States Parties to the present Covenant recognize the right of everyone to the enjoyment
of the highest attainable standard of physical and mental health.71 Right to reproductive
health is included in ambit of physical and mental health. 72 The provision for the reduction
of the stillbirth rate and of infant mortality and for the healthy development of the child”
(art. 12.2 (a)) may be understood as requiring measures to improve child and maternal
health, sexual and reproductive health services, including access to family planning, pre-
and post-natal care, emergency obstetric services and access to information, as well as to
resources necessary to act on that information.73
69
International Covenant on Civil and Political Right, 1966, Art. 9.
70
Moot Proposition ¶ I.
71
International Covenant on Economic, Social and Cultural Rights 1966 Art 6.
72
Moot Proposition ¶ Q.
73
International Covenant on Civil and Political Right, 1966, General Comment 12.

54. In view of the above law, Chester’s actions post the results of the second round of trail
cannot be justified as the measures taken by Chester were extreme and unnecessary. 74
Banning of abortion and contraceptive is in direct violation of the right to reproductive
health.75 In addition, the ban was extended to the entire population of Chester when the
problem only persisted in the state of NIK.
B.3 CHESTER’S ACTIONS ARE NOT JUSTIFIED BY SOVEREIGNTY
55. This contention is to be established by the way of [B.3.1] State sovereignty does not
preclude abuse of power by state
B.3.1 State sovereignty does not preclude abuse of power by state
56. When the actions of the State are in violation of the constitution, the action cannot be
justified as an act of sovereign rights.76 In the above case, the actions taken by Chester
contravene the constitution of the country and various international conventions. Firstly, the
banning of abortion and contraceptive is detrimental to the fundamental right to health and
right to life of the people of Chester. Secondly, the seizing of Profin is not in compliance
with the international standards laid down for the takeover of alien property.
57. Thus, it can be established that “sovereignty” can no longer be used to shield the actions of
the state from internal usurp.
58. Sovereignty is an archaic immunity, the International Court indicated77 the absurdity of
mechanically applying an old norm without reference to the fundamental constitutive
change, national courts have often expressed the need and authority to actualize it.78 The
blanket
74
Moot Proposition ¶ P.
75
Moot Proposition ¶ Q.
76
Great Britain v Costa Rics (1923) 1 RIAA 369.
77
Towne v. Eisner, 245 U.S. 372, 376 (1918).
78
M. S. McDoUGAL, H. LASSWELL &J. MILLER, THE INTERPRETATION OF AGREEMENTS AND

WORLD PUBLIC ORDER, Ch. 4 (1967).

immunity of sovereignty cannot be utilized in cases of human right violation. The drastic
actions taken by Chester cannot be justified merely under sovereign rights of the state.
59. Owing to the policies adopted by Chester, which included brand new amendments for the
comfort and security of investments and property rights.79 It is necessary for the State to
continue securing such property investments efficiently. 80 This would prove to be its step
towards becoming a global nation, with an increased GDP. Moreover, in order to attract
more investments through it’s make local policies, the duty to lessen the risks associated
with property investments lies with Chester. In addition, it is important for the State to
recognize the private property rights of the foreign investors before taking drastic actions
that might lead to flouting of international law.
60. Thus, the hasty response taken by the government to take over the company Profin, cannot
be done in the guise of protecting the women’s rights, as it is important to consider the
immense benefits Profin has brought to the country.
ISSUE C - WHETHER CHESTER COULD CONFISCATE PROFIN AS IT DID UNDER THE

POWERS GIVEN IN THE OFFICIAL ORDER AND WHETHER THE PRESIDENT OF PROFIN
COMPANY WAS LAWFULLY DETAINED, AND HIS SUBSEQUENT DENIAL OF HIS DIPLOMATIC
RIGHTS JUSTIFIED? IN THE EVENT THEY ARE JUSTIFIED DO THEY DESERVE PAYMENT OF
COMPENSATION AND APOLOGY OR ANY OTHER REMEDIES IN INTERNATIONAL LAW?
61. It is contended before this Hon’ble court that [C.1] Chester’s act of confiscation of Profin is
a violation of international law, [C.2] Arrest, Detention and expulsion of Mr. Cristaniniho is
a violation of international law and [C.3] Chester owes reparations to Island of Tina for its
internationally wrongful acts.
[C.1] CHESTER’S ACT OF CONFISCATION OF PROFIN IS A VIOLATION OF INTERNATIONAL LAW

62. It is contended that Chester’s confiscation of Profin is a violation of international law. This
is established in a threefold argument: [C.1.1] Confiscation of Foreign Property
violates
79
Moot Proposition ¶ A.

Policy Responses to the Economic Crisis, ORGANISATION FOR ECONOMIC CO-OPERATION AND
80
DEVELOPMENT, June 2009, https://www.oecd.org/sti/42983414.

human rights & international investment law; [C.1.2] Chester’s act of Confiscation of
Profin does not amount to expropriation; [C.1.3] Assuming but not admitting that Chester’s
act amounts to expropriation, Chester must pay Compensation to Profin
[C.1.1] Confiscation of Foreign Property violates human rights & international investment
law
63. It is contended before the Hon’ble court that the Universal Declaration of Human Rights
provides that "everyone has the right to own property alone as well as in association with
others. No one shall be arbitrarily deprived of his property"81; also, that "everyone is entitled
to all rights and freedoms set forth in this Declaration, without distinction of any kind, such
as national origin"82, and that "all are equal before the law and are entitled without any
discrimination to equal protection of the law"83.
64. Additionally, Article 11 (a) of the International Code of Fair Treatment for Foreign
Investments Code84 provides that the property of foreign investors "shall in no
circumstances be liable to measures of expropriation or dispossession except in
accordance with the appropriate legal procedure and with fair compensation according to
international law”. It has also been held that the seizure of a controlling stock interest in a
foreign corporation is a taking of control of the assets and profits of the enterprise in
question.85
65. It should also be noted that section IV (1) of the World Bank Guidelines on the Treatment
of Foreign Direct Investment86 provides that a state may not expropriate foreign private
investment except where this is done in accordance with applicable legal procedures, in
81
The Universal Declaration of Human Rights, 1948, GA Res. 217 (III), Article 17.
82
83
84
International Code of Fair Treatment for Foreign Investments Code, 1949, Article 11(a).
85
Kalamazoo Spice Extraction Company v. The Provisional military Government of Socialist Ethiopia 86 ILR,
p. 45 and 90 ILR, p, 596.; Agip Spa v. The Government of the Popular Republic of the Congo, 67 ILR, p. 319
and Benvenuti and Bonfant v. The Government of the Popular Republic of the Congo, ICSID Case No.
ARB/77/2. p. 345.
86
World Bank Guidelines on the Treatment of Foreign Direct Investment, reprinted in Shihata, Legal Treatment

of Foreign Investment: "The World Bank Guidelines", Dordrecht, Boston, London 1993.

pursuance in good faith of a public purpose, without discrimination on the basis of
nationality and against the payment of appropriate compensation. Section IV (2) notes that
compensation will be deemed to be appropriate where it is adequate, prompt and effective.
66. In this instant matter, Profin was confiscated by Republic of Chester on arbitrary grounds
stating “violation of its constitution, rights of women, breach of license and abuse of patent
processes.”87. No judicial order was issued for such confiscation and thus wasn’t in
compliance of procedure established by law. Mr. Cristianiniho is the biggest shareholder of
Profin88 and such confiscation of property is a violation of Mr. Cristianiniho right to
property. Chester acts also violate International Investment law concerning foreign investors
such as those of Island of Tina, Mr. Cristianiniho
[C.1.2] Chester’s act of Confiscation of Profin does not amount to expropriation
67. It is contended that Chester’s Confiscation of Profin cannot be inferred as expropriation
since the act doesn’t fulfil the essentials for expropriation. In the Amoco v. Iran Case, the
court noted that "Expropriation ... can be defined as a compulsory transfer of property
rights, and may extend to any right which can be the object of a commercial transaction, i.e.
freely sold and bought, and thus has a monetary value.” 89 Further, with regard to the scope
of an expropriation, the Iran-U.S. Claims Tribunal 90 took the position that an expropriation
of property encompasses all kinds of takings, whether formal and direct such as
nationalization, or informal and indirect such as so-called constructive takings and 'creeping'
expropriation. In 1954 Starrett Housing Corporation v. Islamic Republic of Iran the tribunal
held that it is recognized in international law that measures taken by a state can interfere
with property rights to such an extent that these rights are rendered so useless that they must
be deemed to
87
88
89
Amoco International Finance Corp. v. Islamic Republic of Iran, 6 C.T.R. 149, 168, at p. 220 (1984-11).
90
ALLAHYAR MOURI, THE INTERNATIONAL LAW OF EXPROPRIATION AS REFLECTED IN THE

WORK OF THE IRAN-U.S. CLAIMS TRIBUNAL 70 (1994).

have been expropriated, even though the state does not purport to have expropriated them
and the legal title to the property formally remains with the original owner."91
68. It is a norm of custom that measures having such an effect constitute an indirect
expropriation.92 The present state of customary international law regarding expropriation of
alien property has remained obscure in its basic aspects.93 Nevertheless, pursuant to
principles of international law94, expropriation can be justified only if the Host State can
prove it is: (i) for a public purpose; (ii) provided for by law; (iii) nondiscriminatory; and (iv)
accompanied by adequate compensation.
69. The expropriation of property must be motivated by legitimate welfare objective. In the
present case, Chester did not take over Profin on grounds for using it for its public purpose 95
but stating violation of its domestic law without any judicial inquiry or order.
C.1.3 Assuming but not admitting that Chester’s act amounts to expropriation, Chester
must pay Compensation to Profin
70. It is contended that Payment of compensation for expropriation of Property is a standard
practice recognized by customary law. Article 1 of Protocol I of the European Convention
on Human Rights, 1950 as regards the protection of the right to property and the prohibition
of deprivation of possessions 'except in the public interest and subject to the conditions
provided for by law and by the general principles of international law. International law will
clearly be engaged where the expropriation is unlawful, either because of, for example, the
91
Starrett Housing Corporation v. Islamic Republic of Iran (1983) 4 Iran-U.S. C.T.R. 122.
92
Metalclad Corporation v. United Mexican States, ICSID Case No. ARB(AF)/97/1. ; Glamis Gold, Ltd. v.
United States, Award, 8 June 2009 (NAFTA).
93
Starrett Housing Corporation v. Iran (1984), 4 Iran-US C.T.R. 122; Iran-US Claims Tribunal, Tippetts,
Abbett, McCarthy, Stratton v. TAMS-AFFA, 6 IRAN-U.S. C.T.R., at 219 et seq.; Compania Del Desarrollo de
Santa Elena, S.A. v. Costa Rica (2000), ICSID Case No. ARB/96/1. 39 LL.M. 1317, 1330 (ICSID) [Santa
Elena]
94
Permanent sovereignty over natural resources, General Assembly resolution 1803 (XVII) of 14 December
1962 Resolution 1803; Indirect Expropriation and the Right to Regulate in International Investment Law, OECD
Doc. No. 2004/4, 10 (2004); SHAW, INTERNATIONAL LAW (4th ed, 2003) 1206; D J Harris, " cases and
materials on international law "sweet and Maxwell pg 541 (4th ed.) 1991.
95
Moot Proposition, ¶ Q

discriminatory manner in which it is carried out or the offering of inadequate or no
compensation.96
71. A well-known precedent that involved the governments of the United States and Great
Britain against Portugal is the Delagoa Bay Railway case97. In this case the Portuguese
government confiscated a railway concession originally owned by an American citizen who
later disposed of his rights to a British corporation. Although this involved the taking of
physical properties in addition to the concession, the Portuguese government denied liability
on the ground that the revocation of the concession and the taking were acts of State for
which the State was not responsible. The matter was submitted to arbitration and Portugal
was ordered to pay fifteen and a half million francs to the former owners.98
72. In the United States, the International Claims Settlement Act of 1949 provides for the
method of settlement of certain claims of the United States Government on its own behalf,
and on behalf of American nationals against foreign governments.99 The International
Claims Commission created thereunder is authorized to apply in the decision of such
claims, provisions of the applicable claims agreements and "the applicable principles of
international law, justice and equity."
73. Previously these principles had been incorporated in commercial treaties which the United
States had signed with Italy, Uruguay, and Ireland." All these treaties provide for "just and
effective" compensation, and contain prompt payment clauses and exchange withdrawal
provisions. In addition, the treaties with Uruguay and Ireland contain clauses committing
the countries to act in accordance with the standard of "equitable treatment."
96
Marckx, European Court of Human Rights, Series A, No. 31; 58 ILR, p. 561; Sporrorzg and Lonnroth, ECHR,
Series A, No. 52; 68 ILR, p. 86; Loizidou v. Turkey, Judgment of 18 December 1996; 108 ILR, p. 444. See also
e.g. Jacobs and White European Convention on Human Rights (eds. C. Orey and R. C. A. White), 3rd edn,
Oxford, 2002, chapter 15.
97
Great Britain v. Portugal (1875) 149 C.T.S. 363; Moore, Int. Arb., 4984.
98
2 MOORE, HISTORY AND DIGEST OF THE INTERNATIONAL ARBITRATION 1865 (1898).
99
International Claims Settlement Act of 1949 (1950), 64 Stats. 199 ; (22 U.S.C. 1643).

74. Article 42 of Free Trade Agreement Between the EFTA states and Singapore 100 states that
“None of the Parties shall take, either de jure or de facto, measures of expropriation or
nationalization against investments of investors of another Party, unless such measures are
in the public interest; non-discriminatory; carried out under due process of law; and
accompanied by the payment of compensation.”
75. In the instant matter, The State of Chester hasn’t compensated the owners of Profin after
acquiring Profin which is a breach of principles as per International Standard of Justice.
76. It is also pertinent to mention the State of Chester on the grounds of ‘Public interest’ but on
reasoning of alleged violation of its constitution, rights of women, breach of license and
abuse of patent processes. The liability of Profin and its shareholders on this matter is not
declared by the competent court and thus is a breach of due process of law.
C.2 ARREST, DETENTION AND EXPULSION OF MR. CRISTANINIHO IS A VIOLATION OF

INTERNATIONAL LAW
77. It is contended before this Hon’ble court that Arrest, Detention and expulsion of Mr.
Cristaniniho is a violation of international law. This is established in a two- fold manner
[C.2.1] Arrest and Detention of Mr. Cristaniniho violates his consular rights and [C.2.2]
Arrest, Detention & expulsion of Mr. Cristaniniho violates his human rights
C.2.1 Arrest and Detention of Mr. Cristaniniho violates his consular rights
78. It is contended that Arrest and detention of Mr. Cristaniniho’s violates his consular rights.
Vienna Convention on Consular Relations address consular access in Article 36 (1)(b) 101. It
provides that the competent authorities of the receiving State shall, without delay, inform
the consular post if a national of the sending state is arrested or committed to prison or to
custody
100
Free Trade Agreement Between the EFTA states and Singapore, 2002, Article 42.

UNITED NATIONS, Vienna Convention on Consular Rights, 1963, 596 U.N.T.S. 261, Article 36(1)(b).
101

pending trial or is detained in any other manner.102 The Convention is widely ratified,
currently by one hundred eighty-nine States103, which makes it applicable to nearly all
foreign nationals who are arrested on criminal charges.
79. Article 36 " confers on an individual the right to consular assistance following arrest”. 104An
alien is free at any time to communicate with the consulate or diplomatic mission of the
state of which he or she is a national or, with the consulate or diplomatic mission of any
other state entrusted with the protection of the interests of the state of which he or she is a
national.105
80. The International Court of Justice determined in the Avena case (Mexico v. USA) that
advisement of consular rights “without delay” means “a duty upon the arresting authorities
to give that information to an arrested person as soon as it is realized that the person is a
foreign national, or once there are grounds to think that the person is probably a foreign
national.”106
81. There remains a question on whether the provision creates a right for the individual or not.
The Inter-American Court of Human Rights also reads Article 36 to provide rights to
individuals. Giving an advisory opinion about consular access, it said, "Article 36 of the
Vienna Convention on Consular Relations endows a detained foreign national with
individual rights that are the counterpart of the host State's correlative duties.”107. The
intention of drafters of the convention was to create a private right.108
102
UNITED NATIONS, Vienna Convention on Consular Rights, 1963, 596 U.N.T.S. 261, Article 36(1)(b); Mark
J. Kadish, Article 36 of the Vienna Convention on Consular Relations: A Search for the Right to Consul, 8
MICHIGAN JOURNAL OF INTERNATIONAL LAW, Issue 4.
103
Status of Multilateral Treaties Deposited with the Secretary-General (2002), available at http://untreaty.un.org.
104
Breard v. Greene, 523 U.S. 371, 376 (1998).
105
Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in Which They Live
1985, A/RES/40/144, Article 10.
106
Avena case (Mexico v. USA) I.C.J. Reports 2004, 12; General List No. 128.

107
William J. Aceves, The Right to Information on Consular Assistance in the Framework of the Guarantees of
the Due Process of Law, Advisory Opinion OC-16/99, 94 THE AMERICAN JOURNAL OF
INTERNATIONAL LAW, para. 84 (1999).
108
LaGrand, Germany v United States, [2001] ICJ Rep 466, (2001).

82. In the instant matter, Mr. Cristaniniho was given no legal resource 109 including the right to
consular access which is a violation of his consular rights established under Vienna
Convention on Consular rights.
C.2.2 Arrest, Detention & expulsion of Mr. Cristianiniho violates his human rights
C.2.2.1 Arrest and Detention of Mr. Cristianiniho is in violation of ICCPR
83. Arbitrariness under Article 9(1) encompasses both violations of Article 9’s procedural
guarantees and broader concepts like “inappropriateness, injustice, lack of predictability and
due process of law…reasonableness, necessity and proportionality.”110 It applies to all
deprivations of liberty,111even those carried out in full compliance with domestic law. 112 The
court may consider procedural deficiencies cumulatively.113
a) Mr. Cristianiniho was not informed of a Criminal Charge
84. Article 9(2)114 provides that every person who is arrested shall be given reasons for his or
her arrest. If the arrest is in a criminal context, he or she must be informed promptly of the
charges against him or her.115 One must be reasonably aware of the precise reasons for one’s
arrest. In Ilombe and Shanwe v Democratic Republic of the Congo, the two authors were
human rights activists and were both arrested, and were both told that their arrests were
based on state security measures, without further detail. This circumstance breached article
9(2)116. In the instant case, Mr. Cristaninho was not informed of the precise charges under
which he was arrested.
b) Mr. Cristaniniho was not brought promptly before a judge
109
110
HRC General Comment No.35 (2014), U.N.Doc.CCPR/C/GC/35, ¶12.
111
HRC General Comment No.8 (1982), U.N.Doc.HRI/GEN/1/Rev.6, ¶1.
112
A./Australia, U.N.Doc.CCPR/C/59/D/560/1993, ¶9.5 (1997).
113
Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, 2010 I.C.J. 639, ¶82.
114
The International Covenant on Civil and Political Rights, 1966, Treaty Series, vol. 999, Dec. 1966, p. 171. Art
9(2).
115
Ismailov v Uzbekistan, 2011 (1769/08); Ashurov v Tajikistan, 2007 (1348/05).
116
ILOMBE and SHANDWE v Democratic Republic of the Congo, 2003 (1177/03).

85. Article 9(3)’s requirement of prompt appearance in person. 117 before a judge protects those
arrested but not yet charged.118 One of the keys to the interpretation of article 9(3) is the
meaning of the word ‘promptly’. The General Comment is quite vague, specifying a period
of ‘a few days’. In Portorreal v Dominican Republic,119 the Committee found that there was
no breach of article 9(3) when the author was held for 50 hours before being brought before
a judge.
86. In Freemantle v Jamaica, the Committee found a violation of article 9(3) when the author
was held incommunicado for four days without being brought before a judge and without
having access to counsel.120 In Nazarov v Uzbekistan (911/00), a delay of five days breached
article 9(3).121 HRC jurisprudence therefore indicates that the limit of ‘promptness’ for the
purposes of the article 9(3) guarantee of judicial review lies somewhere around three days.
In the instant case, there is no account of Mr. Cristianiniho being brought before a judge. He
was subsequently denied any legal resource.122
c) Mr. Cristaniniho’s arrest was unreasonable
87. The drafting history of article 9, paragraph 1, confirms that ‘arbitrariness’ is not to be
equated with ‘against the law’, but must be interpreted more broadly to include elements of
inappropriateness, injustice and lack of predictability. This means that remand in custody
pursuant to lawful arrest must not only be lawful but reasonable in all the circumstances.123
117
HRC Gen. Comm. U.N. Doc. CCPR/C/GC/34, ¶42; Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment, U.N.Doc.A/RES/43/173 (1988), Prin.32(2).
118
Schweizer v Uruguay, U.N.Doc.CCPR/C/17/D/66/1980, ¶19 (1982); de Morais/Angola,
U.N.Doc.CCPR/C/83/D/1128/2002, ¶6.4 (2005).
119
Portorreal v Dominican Republic, 1987 (188/84).
120
Freemantle v Jamaica, 2001 (625/95)
121
Nazarov v Uzbekistan, 1997 (911/00).
122
123
Van Alphen v. the Netherlands (305/1988) CCPR/C/39/D/305/1988.

88. Additionally, Unjustified pre-trial of detention, including the arbitrary denial of bail, has
been found to breach article 9(1) in Taright 124 , as well as Marinich v Belarus125 (1502/06)126
and Kulov v Kyrgysztan (1369/05)127. This circumstance also breaches the more specific
right in article 9(3)128.
89. Furthermore, the legal position on preventive detention has been that even if preventive
detention is used, for reasons of public security, it must be controlled by these same
provisions, i.e., it must not be arbitrary, and must be based on grounds and procedures
established by law, information of the reasons must be given and court control of the
detention must be available as well as compensation in the case of a breach. And if, in
addition, criminal charges are brought in such cases, the full protection of article 9 (2) and
(3), as well as article 14, must also be granted.129
90. In the instant matter, the arrest and subsequent detention is arbitrary. Chester offers no
evidence that Mr. Cristaniniho is likely to commit new crimes, destroy evidence, or receive
amnesty in Chester. Finally, laws permitting detention for evidence-gathering in relation to
suspected crimes such as those of ‘illegal profiteering’ typically limit the period of detention
to a few days or weeks. Even if Chester did detain Mr. Cristaniniho for legitimate security
reasons, it must provide specific reasons for the measures130 which it fails to do.
91. Additionally, It is contended that Petitioner’s right to fair trial has been violated. ICCPR
14(1)131 recognizes that ‘all persons’ are ‘equal’ before the courts and tribunals, and
proceeds to guarantee a ‘fair and public hearing’ in the determination of any ‘criminal
charge’ or of
124
Abdelhamid Taright et al. v. Algeria, Communication No. 1085/2002, U.N. Doc. CCPR/C/86/D/1085/2002
(2006).
125
Mikhail Marinich v Belarus (1502/06).
126
Mikhail Marinich v. Belarus, Communication No. 1502/2006, U.N. Doc. CCPR/C/99/D/1502/2006 (2010).
127
Felix Kulov v. Kyrgyzstan, Communication No. 1369/2005, U.N. Doc. CCPR/C/99/D/1369/2005 (2010).
128
Concluding Observations on Canada (2006) UN doc CCPR/C/CAN/CO/5, para 14.
129
SARAH JOSEPH, MELISSA CASTAN, THE INTERNATIONAL COVENANT ON CIVIL AND
POLITICAL RIGHTS: CASES, MATERIALS, AND COMMENTARY, 3rd Ed., 2013, pg 345
130
MANFRED NOWAK, UN COVENANT ON CIVIL AND POLITICAL RIGHTS, CCPR Commentary, 1993.
131
International Covenant on Civil and Political rights, 16 December 1966, United Nations, Treaty Series, vol.
999, p. 171 Art 14.

‘rights and obligations in a suit at law’ by a ‘competent, independent and impartial’ tribunal
‘established by law’. This right is also established in other conventions.132
92. In the instant matter, Mr. Cristaniniho was not provided with the right to counsel nor was he
given the right to consular access and notification.
93. It is thus submitted that Arrest, Detention is in violation of ICCPR
C.2.2.2 Expulsion of Mr. Cristaniniho is in violation of ICCPR
94. It is contended that Expulsion of Mr. Cristaniniho is in violation of ICCPR. Article 13 133 of
the International Covenant on Civil and Political Rights stipulates that an alien lawfully in
the territory of a state party to the Convention may be expelled therefrom only in pursuance
of a decision reached in accordance with law. ICCPR 13 is applicable to all procedures
aimed at the obligatory departure of an alien, whether described in national law as expulsion
or otherwise. If such procedures entail arrest, the safeguards of the covenant relating to
deprivation of liberty (Articles 9134 and 10135) may also be applicable. If the arrest is for the
particular purpose of extradition, other provisions of national and international law may
apply136.
95. The grounds for the expulsion of an alien must have a legal basis, and the procedure leading
to expulsion must be prescribed by law137. The UN Declaration on the Human Rights of
Individuals who are not nationals of the country in which they live138 also stipulates a
similar
132
European Convention for the Protection of Human Rights and Fundamentak Freedoms, 1950, ETS 5 Article
6(1); American Convention on Human Rights, "Pact of San Jose", Costa 1969 8(1); African Charter on Human
and Peoples’ Rights, 1981 Article 7(1), 26
133
999, p. 171 Art 13.
134
999, p. 171 Art 9.
135
999, p. 171 Art 10.
136
Nihal Jayavikrama, THE JUDICIAL APPLICATION OF HUMAN RIGHTS LAW, Cambridge University
Press, 2003, Ed. 1, Pg 602.
137
UN document A/2929, chapter VI, section 63.
138
Declaration on the Human Rights of Individuals who are not nationals of the country in which they live, 1985.

position. Protection of aliens against arbitrary or unlawful expulsion from the country is
guaranteed under the declaration as per Article 5(1)(a)139
96. The reference to ‘law’ in this context is to the domestic law of the state concerned, though
of course the relevant provisions of domestic law must in themselves be compatible with the
provisions of relevant human rights instruments. Though directly regulating only procedure,
ICCPR 13 requires compliance with both the substantive and the procedural requirements of
the law140.
97. It is also essential to note that An alien must be given full facilities for pursuing his remedy
against expulsion so that this right will in all the circumstances of his case be an effective
one.141 While the Human rights committee has recognised ‘national security’ as an exception
to this requirement142, but has also specified that there must be compelling reasons to
conclude the individual as a legitimate threat to national security143.
98. It is pertinent to note that states must give convincing reasons for expelling an alien 144. A
number of cases145 assert this. In, for example, the Boffolo case146, which concerned an
Italian expelled from Venezuela, it was held that states possess a general right of expulsion,
but it could only be resorted to in extreme circumstances and accomplished in a manner
least injurious to the person affected. A similar position of law is established by other
conventions such as European Convention on Establishment147, which provides that
nationals of other
139
Declaration on the Human Rights of Individuals who are not nationals of the country in which they live,
1985, Art 5(1).
140
MAROUFIDOU V. SWEDEN, Human Rights Committee, Communication No.58/1979, HRC 1981 Report,
Annex XVII.
141
Human Rights Committee, General Comment 15 (1986).
142
Human Rights Committee, General Comment 15 (1986).
143
Hammel v. Madagascar, Communication No.155/1983, HRC 1987 Report, Annex VIII.A.
144
SHAW, MALCOLM N. INTERNATIONAL LAW. CAMBRIDGE, UK: Cambridge University Press, 2008.
Print.
145
Dr Breger's case, Whiteman, Digest, vol. VIII, p. 861; R. Plender, International Migration Law, 2nd edn,
Dordrecht, 1988; G. Good\vin-Gill, International Law and the Movement of Persons Between States, Oxford,
1978.
146
Italy v. Venezuela (1903) 10 R.I.A.A. 528.
147
European Convention on Establishment, 1956, Article 3.

contracting states lawfully residing in the territory may be expelled only if they endanger
national security or offend against public order or morality.
99. In the instant matter, Mr. Cristianiniho was first expelled by the State of Chester without
providing any compelling reasons for such expulsion. Mr. Cristaniniho cannot be seen as a
threat to public order since his mere presence in the territory of Chester did not pose any
direct threat to public security of the state.
100. One notable case in this regard, similar to the factual matrix of the present is Giry v.
Dominican Republic148. The facts of the case were that Pierre Giry, a French citizen residing
in Saint- Barthelemy in the Antilles, who had arrived in the Dominican Republic and stayed
there for two days, went to the airport to buy a ticket to return home, he was arrested by two
uniformed agents who took him to the police office at the airport, where he was searched.
101. After two hours and forty minutes he was taken out by a back door leading directly to the
runway and forced to board a plane bound for Puerto Rico. Upon his arrival in Puerto Rico
he was arrested, charged, and convicted of conspiracy to import cocaine into the United
States, and of the use of a communication facility, the telephone, to commit the crime of
conspiracy. He was sentenced to twenty-eight years’ imprisonment and fined $250,000. The
Human Rights Committee observed that whether the action taken by the Dominican
government was termed extradition or expulsion, the provisions of ICCPR 13149 applied.
102. Although the state had invoked the exception based on national security, there was no
evidence of the text of the decision to remove Giry from Dominican territory or that the
decision to do so was reached ‘in accordance with law’. Accordingly, since Giry was not
Giry v. Dominican Republic, Communication No.193/1985, HRC 1990 Report, Annex IX.C.
148
149
999, p. 171 Art 13.

afforded an opportunity to submit the reasons against his expulsion or to have his case
reviewed by the competent authority, ICCPR 13150 was violated.
103. Similarly in the instant matter, Mr. Cristaniniho was never presented with an opportunity to
defend the actions taken against him. He was not provided with any legal recourse151. He did
not pose any legitimate threat to national threat to Chester since he is merely a prime
accused in a case of ‘illegal profiteering’ and thus Chester cannot claim non-compliance
with right to defend by defense of ‘national security’.
C.3 CHESTER OWES REPARATIONS TO ISLAND OF TINA FOR ITS INTERNATIONALLY

WRONGFUL ACTS
104. It is contended that Chester owes reparations to Island of Tina for its internationally
wrongful acts. Every internationally wrongful act of a State entails its international
responsibility.152 Article 2 of RSIWA specifies the conditions required to establish the
existence of an internationally wrongful act of the State, i.e., the constituent elements of
such an act.153 Two elements are identified. First, the conduct in question must be
attributable to the State under international law. Secondly, for responsibility to attach to the
act of the State, the conduct must constitute a breach of an international legal obligation in
force for that State at that time. These two elements were specified, for example, by PCIJ in
the Phosphates in Morocco case154. ICJ has also referred to the two elements on several
occasions.155 By detaining Mr.
150
999, p. 171 Art 13.
151
152
Draft articles on Responsibility of States for Internationally Wrongful Acts, 2001, Art. 1.
153
ILC, Responsibility of States for Internationally Wrongful Acts, 2001, Supplement No. 10, UN Doc A/56/10,
["ARSIWA"], Art 2.
154
Phosphates in Morocco, Judgment, 1938, P.C.I.J., Series A/B, No. 74, p. 10, at p. 28.
155
United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, p. 3, at p. 29, para.
56. Cf. page 41, para. 90.; Dickson Car Wheel Company (U.S.A.) v. United Mexican States, UNRIAA, vol. IV

(Sales No. 1951.V.1), p. 669, at p. 678 (1931).

Cristaniniho, Chester is in a continuous violation of international law. 156 Thus, Chester is
under an obligation to cease its wrongful conduct157 and to make reparation158.
105. The reparation sought is also in the form of restitution, which requires the re-establishment
of the situation159 which existed before occurrence of the wrongful act.160 Accordingly,
Republic of Chester is under an obligation to immediately repatriate Mr. Cristaniniho back
to Island of Tina.
106. Furthermore, Article 9(5)161entitles victims of unlawful detentions to compensation. Non-
material injury, including mental suffering and reputational harm, is compensable under
international law;162it is an “inevitable consequence” of wrongful detention, specific proof
of which is not required for the injured national’s State to receive compensation on his
behalf. Republic of Chester is therefore entitled to receive compensation for the harm
Cristaniniho suffered from his unlawful detention.
156
157
United States Diplomatic and Consular Staff in Tehran (Iran v. United States of America), Judgement, ICJ
Rep 1980, $95(3)(A); Case concerning the Rainbow Warrior (New Zealand v. France), Report of International
Arbitration Awards 1990, vol. XX (Sales No. E/F.93. V.3), p. 266; Wall Advisory, ¶151;
158
Draft articles on Responsibility of States for Internationally Wrongful Acts, 2001, Art. 31(1). RSIWA, Art.
31(1);
159
160
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Rep 2010, ¶273;
161
999, p. 171 Art 9(5).
162
Ahmadou Sadio Diallo, Guinea v Congo, ICJ GL No 103, [2012] ¶ 21.

PRAYER
Wherefore, in light of the issues raised, arguments advanced and authorities cited, may this
Hon’ble International court of Justice be pleased to:
1. DECLARE that the present dispute between Island of Tina and Republic of Chester is
maintainable before this court.
2. HOLD that a woman does not have an agency over giving informed consent
3. DECLARE that right to reproductive right is enshrined in international human right
law and Chester has violated it.
4. HOLD that Chester is exploiting its sovereign rights
5. HOLD that it is not within Chester’s powers to confiscate Profin
6. HOLD that Arrest, Detention and expulsion of Mr. Cristianiniho was unlawful and
the subsequent denial of his diplomatic rights is not justified and a violation of
international law
7. DECLARE that Petitioners are entitled to payment of compensation and apology or
any other remedies in International Law
AND/OR
Pass any other order, direction, relief that it may deem fit in the best interest of Justice,
Fairness and Good Conscience. For this act of kindness, the Applicant shall duty bound
forever pray.
Sd/-
Agent for the Applicant

Applicant AJC11362

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AJC11362

PROF. N. R. MADHAVA MENON ASIAN JURAL CONCLAVE - ASIAN ROUND

BEFORE THE INTERNATIONAL COURT OF

JUSTICE THE PEACE PALACE

THE HAGUE, NETHERLANDS

UNDER THE ARTICLE 36(2) OF THE STATUTE OF INTERNATIONAL COURT OF

UPON SUBMISSION TO THE HON’BLE INTERNATIONAL COURT OF JUSTICE

MEMORANDUM ON BEHALF OF THE APPLICANT

MEMORIAL ON BEHALF OF THE III

ABBREVIATIONS ACTUAL TERMS

L Rev Law Review

O.A. Original Application

MEMORIAL ON BEHALF OF THE IV

MEMORIAL ON BEHALF OF THE V

22. Kalamazoo Spice Extraction Company v. The Provisional military Government of

MEMORIAL ON BEHALF OF THE VI

TREATISES AND CONVENTIONS

MEMORIAL ON BEHALF OF THE VII

UNITED NATIONS DOCUMENT

1. A./Australia, U.N.Doc.CCPR/C/59/D/560/1993, ¶9.5 (1997)...........................................22

MEMORIAL ON BEHALF OF THE VII

MEMORIAL ON BEHALF OF THE IX

34. Universal declaration of human rights, 1948, Art.11

35. HRC Gen. Comm. U.N. Doc. CCPR/C/GC/34,.................................................................23

MEMORIAL ON BEHALF OF THE X

15. M. S. McDoUGAL, H. LASSWELL &J. MILLER, THE INTERPRETATION OF

MEMORIAL ON BEHALF OF THE XI

MEMORIAL ON BEHALF OF THE XII

under Article 36(2) of the Statute of the International Court of Justice

Article 36(2) of the Statute of International Court of Justice:

1. The interpretation of a treaty;

2. Any question of international law;

3. The existence of any fact which, if established, would constitute a breach of an

MEMORIAL ON BEHALF OF THE XII

Island of Tina – Is a neighbouring state to Chester. Island of Tina is a democratic country

established as a controller of global resources by allowing the establishment of various

multinational companies in different parts of its territory.

of Tina and a resident of Chester for the past 18 years.

chip to be inserted into their body for monitoring.

MEMORIAL ON BEHALF OF THE XI

created a nation-wide demand for the pill.

and the property of Profin was confiscated

MEMORIAL ON BEHALF OF THE XV

INTERNATIONAL COURT OF JUSTICE?

SHE HAVE AN INHERENT RIGHT TO REPRODUCTIVE HEALTH UNDER INTERNATIONAL

HUMAN RIGHTS FRAMEWORK AS WELL AS INTERNATIONAL LAW AND AS SUCH ACTION

[B.1] International Law does not prescribe informed consent

[B.3] Chester’s actions are not justified by sovereignty

LAWFULLY DETAINED, AND HIS SUBSEQUENT DENIAL OF HIS DIPLOMATIC RIGHTS

JUSTIFIED? IN THE EVENT THEY ARE JUSTIFIED DO THEY DESERVE PAYMENT OF

[C.1] Chester’s act of confiscation of Profin is a violation of international law

MEMORIAL ON BEHALF OF THE XV

It is humbly contended that Confiscation of Property by Chester’s act is violative of human

international customary law. Arrest, Detention and expulsion of Mr. Cristaniniho is a

MEMORIAL ON BEHALF OF THE XV

ISSUE A: WHETHER THE CLAIMS MADE BY ISLAND OF TINA ARE

Chester is responsible for committing internationally wrongful act.

JURISDICTION OF THIS COURT.

interpretation of a treaty, question of international Law, presence of any fact that, if

of the restitution to be paid in the event of a breach of an international obligation.2.

MEMORIAL ON BEHALF OF THE 1

Secretary- General of the United Nations4.

[A.1.1] The present dispute is in relation to various questions of international law

being expropriated6 and diplomatic protection of Mr. Cristianiniho.