Respondent AJC11362

PROF. N. R.
MADHAVA MENON ASIAN MOOTING COMPETITION

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 RESPONDENT
MEMORIAL ON BEHALF OF THE RESPONDENT I

PROF. N. R. MADHAVA MENON ASIAN MOOTING COMPETITION
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 The present dispute does not relate to a question of international law ........................ 1
A.2- Island of Tina has not exhausted all the local remedies. ............................................ 4
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 sovereign state?.................................................................... 6
B.1 International Law recognizes a right to informed consent ........................................... 6
B.1.1 Informed consent is an essential component of international human rights law .. 7
B.1.2 Informed consent is customary international law ................................................. 8
B.2 Island of Tina has approached the court with unclean hands ...................................... 9
B.3 Right to reproductive health is an essential component of International Human Rights
Law ................................................................................................................................... 10
B.3.1 Right to reproductive health is enshrined in Article 12 of the ICESCR and Article
6 of the ICCPR .............................................................................................................. 10
B.3.2 Right to reproductive health is customary international law............................... 12
B.3.3 Island of Tina has violated the right to reproductive health of Chester’s citizens
....................................................................................................................................... 13
B.4 Actions of Chester were within state sovereignty...................................................... 14
B.4.1 States have absolute sovereignty within their territory ....................................... 14
B.4.2 State welfare prevails over State obligation ........................................................ 15
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
MEMORIAL ON BEHALF OF THE RESPONDENT II

C.1 Confiscation of Profin does not violate international law of property laws .............. 16
C.1.1 It is within Chester’s sovereign power to confiscate Profin................................ 16
C.1.2 International law recognizes a right to confiscate property by state within its
territory ......................................................................................................................... 17
C.2 Detention of Mr. Cristaniniho is not a violation of Vienna Convention on Diplomatic
relation. ............................................................................................................................. 20
C.2.1 MR. CRISTIANINIHO DOESN’T FALL WITHIN THE DEFINITION OF ‘DIPLOMAT’ AS PER
THE CONVENTION ........................................................................................................... 20
C.2.2 Assuming he is a diplomat, Diplomatic agent does not enjoy immunity against
criminal jurisdiction of hosting state in case of exceptions stated in Art 31 of the
Convention .................................................................................................................... 22
C.3 Arrest, Detention and expulsion of Mr. Cristianiniho is not a violation of his Human
rights guaranteed under International Law ....................................................................... 23
C.3.1 It does not violate International Covenant on the Civil and Political Rights ...... 23
C.3.2 It doesn’t violate his consular rights ....................................................................... 27
C.3.2.1 RIGHT TO CONSULAR ACCESS SHOULD BE IN CONFORMITY WITH THE LAWS AND
RULES OF RECEIVING STATE ........................................................................................... 27
C.4 Chester is not liable to compensation, apology or any other remedy under International
Law ................................................................................................................................... 28
Prayer ....................................................................................................................................... 30
MEMORIAL ON BEHALF OF THE RESPONDENT III

LIST OF ABBREVIATIONS
ABBREVIATIONS ACTUAL TERMS
& And
§ Section
¶, Para Paragraph
Anr. Another
DG Director General
Ed. Edition
EU European Union
Govt. Government
Hon’ble Honorable
IPR Intellectual Property Rights
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 RESPONDENT IV

INDEX OF AUTHORITIES
CASES
1. A V. Australia, CCPR/C/59/D/560/1993, ¶9.5 (1997). ................................................................. 23

2. A./Australia, CCPR/C/59/D/560/1993, ¶9.2 (1997 ........................................................................ 23
3. Agip SpA v. The Government of the Popular Republic of the Congo, 1979, 67 ILR, pp. 319, 336–
9. ..................................................................................................................................................... 22
4. Ambiente Ufficio S.p.A. and others (formerly Giordano Alpi and others) v. Argentine Republic,
ICSID Case No. ARB/08/9, Decision on Jurisdiction and Admissibility, 8 February 2013 ............ 5
5. Amco Asia Corporation and others v. Republic of Indonesia, ICSID Case No. ARB/81/1, Ad hoc
Committee Decision on the Application for Annulment, 16 May 1986........................................... 5
6. AMCO v. Indonesia (Merits) 89 ILR, pp. 405, 466. ...................................................................... 22
7. Border v Lewisham and Greenwich NHS Trust 2015 EWCA Civ 8 ............................................... 9
8. C./Australia, CCPR/C/76/D/900/1999, ¶14 (2002) ........................................................................ 23
9. Canterbury v Spence 464 F 2d 772 (1972) ....................................................................................... 8
10. Canterbury v Spence 464 F 2d 772 (1972). ...................................................................................... 8
11. Central Bank of Nigeria Case, 65 I.L.R. 131 (Germany, 1975). .................................................... 21
12. Counter memorial submitted by the United State of America (LaGrand case) ¶ 79(2). ................ 23
13. Counter memorial submitted by the United State of America (LaGrand case) ¶79(2). ................. 23
14. Counter memorial submitted by the United State of America (LaGrand case) ¶80(3). ................. 23
15. De Sancllez v. Barlco Cerltral de Nicaragua and Others 770 F.2d 1385, 1397; 88 ILR. ............... 22
16. Decision No.97–389 of the Constitutional Council of France, 22 April 1997, Journal officiel de la
République francaise – lois et décrets, 25.04.1997, 6271, (1997) 1 Bulletin on Constitutional
Case-Law 38 ................................................................................................................................... 23
17. 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). ............................................................................................... 24
18. Elettronica Sicula S.p.A. (ELSI) (United States of America v. Italy), Judgment, 20 July 1989 ....... 4
19. Ethyl Corporation v. The Government of Canada, Award on Jurisdiction, 24 June 1998 ............... 5
20. Germany v Italy ICGJ 434 ............................................................................................................. 16
21. Giry v. Dominican Republic, Communication No.193/1985, HRC 1990 Report, Annex IX.C. ... 23
22. Greece v. U.K. (Cyprus Case), 2 Y.B.E.C.H.R. (1959-1960), 176 ................................................ 23
23. Interhandel (Switzerland v. United States of America), Judgment - Preliminary Objections, 21
March 1959................................................................................................................................... 4, 5
MEMORIAL ON BEHALF OF THE RESPONDENT V

24. Interhandel (Switzerland v. United States of America), Judgment - Preliminary Objections, 21

March 1959; ..................................................................................................................................... 5
25. Joshephine Oundo Ongwen v Attorney General 2016 eKLR ........................................................ 13
26. Liamco v. Libya, 20 ILM, 1977, p. 1; 62 ILR, p. 141. .................................................................. 22
27. Liamco v. Libya, 20 ILM, 1977, p. 1; 62 ILR, p. 141. ................................................................... 23
28. Loewen Group, Inc. and Raymond L. Loewen v. United States of America, ICSID Case No.
ARB(AF)/98/3, Award, 26 June 2003 .............................................................................................. 5
29. 'Lotus', France v Turkey, Judgment, Judgment No 9, PCIJ Series A No 10, ICGJ 248 (PCIJ 1927).
........................................................................................................................................................ 22
30. Millicent Awuor & Margaret Anyoso Oliele v Attorney General (2008) AHRLR 43 .................. 13
31. Morais v. Angola, CCPR/C/83/D/1128/2002, ¶6.1, (2005) ........................................................... 23
32. Mukong v. Cameroon, CCPR/C/45/D/458/1991, ¶9.8 (1991). ...................................................... 23
33. North Sea Continental Shelf (Germany/Denmark, Germany/Netherlands), Merits, 1969 I.C.J. 3,
¶77. ................................................................................................................................................. 22
34. Phosphates in Morocco, Judgment, 1938, P.C.I.J., Series A/B, No. 74, p. 10, at p. 28. ................ 24
35. Polish Upper Silesia case, PCIJ, Series A, No. 7, 1926, p. 22. ...................................................... 22
36. R.R v Poland – European Court of Human Rights [2011] ECHR 828........................................... 15
37. Rankill v. The Islanric Republic of Iran 17 Iran-US CTR, pp. 135, 142; 82 ILR, pp. 204, 214. ... 23
38. Schloendorff v Society of New York Hospital 105 NE 92 (1914) ................................................... 9
39. Schweizer v. Uruguay, (66/1980), ¶18.1 (1980); ........................................................................... 23
40. Shafiq v. Australia, CCPR/C/88/D/1324/2004, ¶4.10 (2004); ....................................................... 23
41. ST-AD GmbH v. The Republic of Bulgaria, PCA Case No. 2011-06, Award on Jurisdiction, 18 July
2013 .................................................................................................................................................. 5
42. Swissbourgh Diamond Mines (Pty) Limited, Josias Van Zyl, The Josias Van Zyl Family Trust and
others v. The Kingdom of Lesotho, PCA Case No. 2013-29, Judgment of the Singapore Court of
Appeal [2018] SGCA 81, [2019] 1 SLR 263, 27 November 2018................................................... 5
43. 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 .................................................................................................. 24
44. Van Alphen v. Netherlands, U.N.Doc.CCPR/C/39/D/305/1988, ¶5.8 (1989) ............................... 23
STATUTES
1. Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §1602–1611 (U.S.), §1603(b). ................ 21
2. OBB Personenverkehr AG/Sachs, 136 S.Ct. 390 (2015) (U.S.)..................................................... 21
3. State Immunities Act, 1978 c. 33, pt. I (U.K.), §14........................................................................ 21
MEMORIAL ON BEHALF OF THE RESPONDENT VI

TREATISES AND CONVENTIONS

1. Charter of Economic Rights and Duties of States , 1974 ,Article 2(2)c ............................ 22
2. Committee on Economic, Social and Cultural Rights, (1988) art. 12 ............................... 14
3. Committee on the Elimination of Discrimination against Women, (1979), Art.16 ........... 14
4. Convention for the Protection of Human Rights and Fundamental Freedoms, adopted on 4
November 1950 .................................................................................................................... 4
5. Convention on the Elimination of All forms of Discrimination against Women, UNITED
NATION ENTITY FOR GENDER EQUALITY AND THE EMPOWERMENT OF
WOMEN ............................................................................................................................ 10
6. International Covenant on Civil and Political Rights, (1966) Art.4. ................................. 17
7. International Covenant on Civil and Political Rights, (1966), Art 4. ................................ 17
8. International Covenant on Civil and Political rights, 16 December 1966, United Nations,
Treaty Series, vol. .............................................................................................................. 21
Treaty Series, vol. 999, p. 171 Art 6. ................................................................................. 21
Treaty Series, vol. 999, p. 171 Art 9. ................................................................................. 23
Treaty Series, vol. 999, p. 171, Art 9. ................................................................................ 23
12. International Covenant on Civil and Political Rights, adopted on 16 December 1966 ....... 5
13. International Covenant on Civil and Political Rights, Art. 6 ............................................. 14
14. Netherlands v. USA (Palmas Island Deal), April 4, 1928, RSA, vol. II, p. 838. ............... 20
15. Statue of the international court of Justice, 1945, Art. 36(2) ............................................... 1
16. Statute of the International Court of Justice, 1945 .............................................................. 1
17. Statute of the international Court of Justice, 1945, Art. 36(2)(c) ........................................ 2
18. UN General Assembly, Declaration on Principles of International Law concerning
Friendly Relations and Cooperation among States in accordance with the Charter of the
United Nations, 24 October 1970, A/RES/2625(XXV)..................................................... 19
19. UN Laws and Regulations pp 65, 112, 167, 224, 243, 308, 330. ...................................... 23
20. United Nations Convention on Jurisdictional Immunities of States and Their Property
(2005), 44 I.L.M. 801 (U.N.Doc.A/59/22), Art.2 .............................................................. 22
21. United Nations Declaration on Inadmissibility of Intervention in Domestic Affairs of States
and Protection of their Independence and Sovereignty, UNGA Res 2131 (XX) (21
December 1965) ................................................................................................................. 20
MEMORIAL ON BEHALF OF THE RESPONDENT VII

22. United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI. ............ 19
23. UNITED NATIONS, Vienna Convention on Consular Rights, 1963, 596 U.N.T.S. 261,
Article 36, cl. 2................................................................................................................... 23
24. UNITED NATIONS, Vienna Convention on Consular Rights, 1963, 596 U.N.T.S. 261,
Article 55(1). ...................................................................................................................... 20
25. Universal Declaration of Bioethics and Human Rights Art 3............................................ 11
26. Universal Declaration of Human Rights, (1948), Art.8. .................................................... 17
27. Universal Declaration on Bioethics and Human Rights, UNESCO, Art 27(2005). ............ 8
28. Universal Declaration on Bioethics and Human Rights, UNESCO, Art 6 (2005). ............. 7
29. Vienna Convention on Diplomatic Relations (1964), 500 U.N.T.S. 95, Art.41(1). .......... 20
30. Vienna Convention on Diplomatic Rights, 1961, Article 31 ............................................. 23
31. Vienna Convention on Diplomatic Rights, 1961, Article 31(3) ........................................ 23
32. Vienna Convention on Diplomatic Rights, 1961, Article 42 ............................................. 23
33. Vienna Convention on the Law of Treaties, 1969, United Nations, Treaty Series, vol. 1155,
p. 331, Art.31(3)(b). ........................................................................................................... 23
34. World Medical Association, Declaration of Helsinki: Ethical Principles for medical
research involving human subjects, 25 (1964) .................................................................... 7
35. World Medical Association, Declaration of Helsinki: Ethical Principles for medical
research involving human subjects, 25 (1964). ................................................................... 8
UNITED NATIONS DOCUMENT
1. 1962 General Assembly Resolution 1803 (XVII) on Permanent Sovereignty over Natural
Resources, Para 4 ........................................................................................................................... 22
2. Arbitrary Detention, U.N.Doc.A/HRC/Res/6/4, ¶5(e) (2007 ......................................................... 23
3. Committee on Economic, Social and Cultural Rights General Comment 22................................. 13
4. Committee on Economic, Social and Cultural Rights, (2016), General Comment 22 ................... 13
5. Committee On Economic, Social and Cultural Rights, General Comment 14 ............................... 12
6. Committee on Economic, Social and Cultural Rights,(2016) General Comment 14 ..................... 14
7. D. & E. v. Australia, U.N.Doc.CCPR/C/87/D/1050/2002 ............................................................. 23
8. Draft Articles on Consular Relations, with commentaries 1961, article 36, ¶(5) ........................... 23
9. Draft Articles On Responsibility of States for Internationally Wrongful Acts, 2001, Art. 1. ........ 23
10. Draft articles on Responsibility of States for Internationally Wrongful Acts, 2001, Art. 22. ........ 24
11. Draft Articles On the Law of Treaties with Commentaries, Yearbook of the International Law
Commission, 1966, vol. II., Article (43). ....................................................................................... 23
MEMORIAL ON BEHALF OF THE RESPONDENT VIII

12. HRC, General Comment No.29, U.N.Doc.CCPR/C/21/Rev.1/Add.11, ¶15 (2001). ..................... 23

13. HRC, General Comment No.31,U.N.Doc.CCPR/C/21/Rev.1/Add.13, ¶6 (2004........................... 23
14. HRC, General Comment No.35, U.N.Doc.CCPR/C/GC/35, ¶¶22, 23 (2014); .............................. 23
15. Human Rights Committee, General Comment 15 (1986). ............................................................. 23
16. ILC (International Law Commission) Draft Articles ....................................................................... 4
17. ILC (International Law Commission) Draft articles on Diplomatic Protection with Commentaries,
adopted on 9 August 2006 ................................................................................................................ 4
18. ILC (International Law Commission) Draft articles on Diplomatic Protection, adopted on 9 August
2006 .................................................................................................................................................. 4
19. ILC, Responsibility of States for Internationally Wrongful Acts, 2001, Supplement No. 10, UN Doc
A/56/10, ["ARSIWA"], Art 2. ........................................................................................................ 24
20. ILC, Responsibility of States for Internationally Wrongful Acts, 2001, Supplement No. 10, UN Doc
A/56/10, ["RSIWA"], Arts. 12, 31, 36 ........................................................................................... 24
21. International Conference on Population and Development, UNFPA. ............................................ 13
22. Louis Joinet, Special Rapporteur, Report on the Practice of Administrative Detention,
U.N.Doc.E/CN.4/Sub.2/1990, 29 (1990 ......................................................................................... 23
23. Report of the Third Committee on the ICCPR, U.N.Doc.A/4045, Annexes Agenda Item 32, ¶7
(1958) ............................................................................................................................................. 23
24. Report of the Working Group on Arbitrary Detention, U.N.Doc.A/HRC/22/44, , ¶¶42-51 (2012).
........................................................................................................................................................ 23
25. Schweizer v. Uruguay, ¶114; General Comment No.35, U.N. Doc CCPR/C/GC/35¶15. ............. 23
26. UN Doc. S/PV.2902, at 7 ............................................................................................................... 16
27. UN General Assembly, Declaration on the Human Rights of Individuals Who Are Not Nationals of
the Country in Which They Live : resolution / adopted by the General Assembly, 13 December 1985,
A/RES/40/144. ............................................................................................................................... 23
28. United Nations sexual and reproductive health agency; International Conference on Population and
Development,(1994). ...................................................................................................................... 13
29. Alyne da Silva Pimentel v Brazil CEDAW, UN Doc CEDAW/C/49/D/17/2008 (2011) .............. 15
30. Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries,
YEARBOOK OF THE INTERNATIONAL LAW COMMISSION, 2001, vol. II, Part 2. ........... 24
OTHER AUTHORITIES
1. (2006); Principles and Best Practices on the Protections of Persons Deprived of Liberty in
the Americas, OAS OEA/Ser/L/V/II 131 DoC.16, Prin. III.2 (2008) ............................... 23
MEMORIAL ON BEHALF OF THE RESPONDENT IX

2. (Grubb, Liang, & McHale, 2010, ¶ 8.68 ............................................................................ 10

3. 1 BRUNO SIMMA, THE CHARTER OF THE UNITED NATIONS: A COMMENTARY
(3rd ed. 2012). .................................................................................................................... 19
4. 1895–6 Institut de Droit International Annuaire p 240; 1929 vol II p 207; 26 AJIL (1932
Supp) 162 (Art 16 at 164), 186 (Art 13 at 187). ................................................................ 23
5. 2 PREVENTIVE DETENTION AND SECURITY LAW: A COMPARATIVE SURVEY
(Harding et al., eds. 1993) (examining preventive detention in 17 African, Asian, and
European States); S.B. Elias, Rethinking “Preventive Detention” from a Comparative
Perspective, 41 COL. H.R.L.R. 130 (2009) ....................................................................... 23
6. ANTONIO CASSESE, INTERNATIONAL LAW 99-101 (2005). .................................. 21
7. 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) ........................................... 12
8. Cook RJ, Maine D. Spousal veto over family planning services. American journal of public
health, 1987, 77: 339-344. ................................................................................................. 10
9. Demirkol, B. (2018) Judicial Acts and Investment Treaty Arbitration. Cambridge:
Cambridge University Press (Cambridge International Trade and Economic Law). doi:
10.1017/9781108182515 ..................................................................................................... 5
10. Fariba Asghari, Ethical Analysis of Husband’s Consent to his wife’s treatment, TEHRAN
UNIVERSITY OF MEDICAL SCIENCES Vol. 4 No 3, 81-83 (2017) ............................. 9
11. Gillon R, Philosophical Medical Ethics, pg 66-68 (1986) ................................................... 9
12. GOODWIN-GILL, INTERNATIONAL LAW AND THE MOVEMENT OF PERSONS,
Brownlie, Principles, p. 522; M. PELLONPAA, EXPULSION IN INTERNATIONAL
LAW, 1984 ........................................................................................................................ 23
13. Human Experiments – the good, the bad, and the ugly, THE CONVERSATION, (June 8,
2015 6.27am) https://theconversation.com/human-experiments-the-good-the-bad-and-the-
ugly-39876 ......................................................................................................................... 11
14. ILC Yearbook 1957 vol I pp 97–8. .................................................................................... 23
15. Informed Consent, STANFORD ENCYCLOPEDIA OF PHILOSOPHY, Vol Spring
2019), pg 44 - 45 ................................................................................................................ 10
16. International Bio Ethics Committee,THE PRINCIPLE RESPECT FOR PATIENT’S
AUTONOMY IS A PART OF RESPECT FOR HER HUMAN DIGNITY 83 (56p 2013)
.............................................................................................................................................. 9
17. International Ethical Guidelines for Health-related Research Involving Humans, Guideline
9 https://cioms.ch/wp-content/uploads/2017/01/WEB-CIOMS-EthicalGuidelines.pdf ...... 9
MEMORIAL ON BEHALF OF THE RESPONDENT X

18. Issues in reproductive health, UN WATCH,

https://www.un.org/womenwatch/daw/csw/issues.htm ..................................................... 14
19. Jackson Namunya Tali v. The Republic of Kenya (2017) eKLR HC ............................... 12
20. Legal Centre, A comprehensive guide to women’s legal rights, IITK,
https://www.iitk.ac.in/wc/data/Majlis_Legal-rights-of-women.pdf .................................. 10
21. Rebbeca J Cook, The Promotion and Protection of Women’s Health through International
Human Rights Law, WOMENS HEALTH AND HUMAN RIGHTS, pg 23 ................... 14
22. Reisman, W. Michael. “Sovereignty and Human Rights in Contemporary International
Law.” The American Journal of International Law, vol. 84, no. 4, American Society of
International Law, 1990, pp. 866–76, https://doi.org/10.2307/2202838. .......................... 16
23. Report of the Working Group on Jurisdictional States and their Property, ILC Yearbook
(1999-II), ¶¶61-83. ............................................................................................................. 22
24. Reproductive Rights are Human Rights, UNITED NATIONS HUMAN RIGHTS OFFICE
OF THE HIGH COMMISSIONER, (Feb. 17, 2022, 13:13 AM)
https://www.ohchr.org/documents/publications/nhrihandbook. .......................................... 8
25. RJ Cook, Women’s Reproductive Rights, INTERNATIONAL JOURNAL OF
GYNECOLOGY AND OBSTERICS (1994) .................................................................... 13
26. SHAW, MALCOLM N. INTERNATIONAL LAW. Cambridge, UK: Cambridge
University Press, 2008. Print. ............................................................................................ 23
27. V Lamm, Compulsory Jurisdiction in International Law (Elgar Cheltenham 2014), G
Törber, The Contractual Nature of the Optional Clause (Hart Oxford 2015 ....................... 1
28. XIAODONG YANG, STATE IMMUNITY IN INTERNATIONAL LAW 278-279 (2015).
............................................................................................................................................ 21
29. Y DINSTEIN, ‘Right to Life, Physical Integrity, and Liberty’ , in L Henkin (ed), The
International Bill of Rights ( Columbia University Press , 1981), 130.............................. 23
30. Y. ARAI-TAKAHASHI, THE MARGIN OF APPRECIATION DOCTRINE AND THE
PRINCIPLE OF PROPORTIONALITY IN THE JURISPRUDENCE OF THE ECHR,
180(2002) ........................................................................................................................... 23
31. Zulfiqar A Bhutta, Beyond Informed Consnet Bulletin of World Health Organization, WORLD
HEALTH ORGANIZATION https://www.who.int/bulletin/volumes/82/1
MOOT PROPOSITION
1. Moot Proposition ¶ I ....................................................................................................................... 10

2. Moot Proposition ¶ I. ........................................................................................................................ 8
MEMORIAL ON BEHALF OF THE RESPONDENT XI

3. Moot Proposition ¶ J............................................................................................................... 8, 9, 10

4. Moot Proposition ¶ J......................................................................................................................... 8
5. Moot Proposition ¶ M..................................................................................................................... 13
6. Moot Proposition ¶ N ............................................................................................................... 13, 15
7. Moot Proposition ¶ N. ................................................................................................................ 8, 17
8. Moot Proposition clarification No.24 ............................................................................................... 5
9. Moot Proposition ¶ J ..................................................................................................................... 11
10. Moot Proposition ¶ N ........................................................................................................ 11, 15, 17
11. Moot Proposition, ¶ A ...................................................................................................................... 3
12. Moot proposition, ¶ I .................................................................................................................... 3, 6
13. Moot Proposition, ¶ I. ..................................................................................................................... 23
14. Moot proposition, ¶ N .................................................................................................................. 2, 3
15. Moot proposition, ¶ O ...................................................................................................................... 3
16. Moot Proposition, ¶ O ............................................................................................................ 2, 6, 23
17. Moot Proposition, ¶ O. ............................................................................................................. 20, 23
18. Moot Proposition, ¶ P ....................................................................................................................... 3
19. Moot proposition, ¶ Q .............................................................................................................. 3, 4, 5
20. Moot Proposition, ¶ Q ...................................................................................................................... 5
21. Moot Proposition, ¶ Q. ................................................................................................................... 23
MEMORIAL ON BEHALF OF THE RESPONDENT 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 RESPONDENT XIII

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 RESPONDENT XIV

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 RESPONDENT XV

STATEMENT OF ISSUES
ISSUE A: WHETHER THE CLAIMS MADE BY ISLAND OF TINA ARE MAINTAINABLE BEFORE THE
INTERNATIONAL COURT OF JUSTICE?
[A.1] The present dispute does not relate to a question of international law
[A.2] Island of Tina has not exhausted all the local remedies.
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 recognizes a right to informed consent
[B.2] Island of Tina has approached the court with unclean hands
[B.3] Right to reproductive health is an essential component of International Human Rights

Law
[B.4] Actions of Chester were within state 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] Confiscation of Profin does not violate international law of property laws
[C.2] Detention of Mr. Cristaniniho is not a violation of Vienna Convention on Diplomatic

relation.
[C.3] Detention of Mr. Cristaniniho is not a violation of Vienna Convention on Diplomatic

relation.
[C.4] Chester is not liable to pay compensation, apology or any other remedy under
International Law
MEMORIAL ON BEHALF OF THE RESPONDENT XVI

SUMMARY OF ARGUMENTS
ISSUE A: WHETHER THE CLAIMS MADE BY ISLAND OF TINA ARE MAINTAINABLE BEFORE THE
INTERNATIONAL COURT OF JUSTICE?
It is contended before this hon’ble court that claims made by island of Tina are not maintainable
before this court due to the reason that all the local remedies are not exhausted by Island of
Tina and the present dispute is not in relation to question of international law or any other
related dispute under Articl3e 36(2) of the statute of the 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 TAKEN BY
CHESTER TO PROTECT THE RIGHTS OF ITS WOMEN CITIZENS ARE WITHIN THE SCOPE OF
STATE SOVEREIGNTY?
It is contended before the Hon’ble court that women have agency for giving informed as
informed consent an essential human right. Further informed consent is part of international
customary law. Secondly, right to reproductive health is a part of international human right and
Island of Tina is guilty is of violating it. Thirdly, Chester can exercise its sovereign rights to
protect its women citizens
ISSUE C - WHETHER CHESTER COULD CONFISCATE PROFIN AS IT DID UNDER THE POWERS
COMPENSATION AND APOLOGY OR ANY OTHER REMEDIES IN INTERNATIONAL LAW ?
It is humbly contended that Chester has absolute sovereignty over its territory and Chester’s
act of confiscation of Profin is justified by its sovereignty. International law recognizes
confiscation of property. Island of Tina violated human rights of its citizen, internal laws of
Chester, breached contract with Chester. Moreover, right to expropriate property is valid as per
international law. Chester owes no reparations in any form since the actions taken by it were
countermeasures to wrongful
MEMORIAL ON BEHALF OF THE RESPONDENT XVII

ARGUMENTS ADVANCED
ISSUE A: WHETHER THE CLAIMS MADE BY ISLAND OF TINA ARE MAINTAINABLE BEFORE
THE INTERNATIONAL COURT OF JUSTICE?
1. This is contented before this hon’ble court that claims made by the Island of Tina are not
maintainable before this court. This contention is sought to be established in two-fold manner-
[A.1] The present dispute does not relate to a question of international law and [A.2] Island
of Tina has not exhausted all the local remedies.
A.1 THE PRESENT DISPUTE DOES NOT RELATE TO A QUESTION OF INTERNATIONAL LAW
2. It is submitted before this hon’ble court that the present dispute is not maintainable under
Article 36 paragraph 2 of the statute of the international court of justice.1 Under Article 36(2)
of the statute, 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 only 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
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
3. In the present case although both the parties have accepted the compulsory jurisdiction of the
Court which both Parties have duly signed and deposited with the Secretary-General of the
United Nations, yet it needs to fulfill Article 36(2) of the statute which provides the types and
scope of disputes that can be taken by the court.
1
Statute of the International Court of Justice, 1945.
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 RESPONDENT 1
4. In the present case, interpretation of any treaty or convention has not been argued by Island
of Tina. Island of Tina applied before ICJ intending to obtain a finding whether or not Chester
is guilty of violations of international law committed upon the property of Profin and a
National of Island of Tina4 and does not relate to interpretation of any treaty whatsoever.
5. Therefore, it is submitted that the present dispute is not maintainable under Article 36(2)(a)
of the statute as it does not relate to interpretation of any treaty or convention
6. It is contented that in the present case there are absence of any facts which can constitute a
breach of an international obligation of Republic of Chester by virtue of which the present
case is not maintainable. There needs to be existence of such facts which if established in the
court can rightly constitute a breach of an international obligation5
7. The investigation by the highest Intelligence Bureau of Chester found confidential data being
maintained by Profin and communications with Island of Tina which revealed that under the
guise of doing research, “Profin” has launched research on a rare genome project that can
have impacts on DNA or genetic diversity.6
8. The joint study by policy groups named “WomeCare” and “Karsh” found that there is lack of
informed consent by women and consent was given by men in the family7. It further found
that women after consuming the pill began to suffer several adverse health consequences
affecting their reproductive health, and that their menstrual cycles got considerably disrupted
and thereby causing irregular periods and over bleeding in certain cases and as well women
who gave birth to a child were giving birth to a male child only and thus creating a policy
problem.8
9. It was after these findings that the Republic of Chester through a high-level parliamentary
committee decided to ban Winterstark pill and work at Profin since it created a heath crisis in
4
Moot Proposition, ¶ R.
5
Statute of the international Court of Justice, 1945, Art. 36(2)(c).
6
Moot Proposition, ¶ O.
7
Moot proposition, ¶ N.
8
Moot proposition, ¶ N.
the country.9 It was after due procedure that all the contraceptives and abortion were
prohibited in the country in order to protect the reproductive rights of women.10 Also, this
happens to be internal problem of the Republic of Chester and it has sovereign rights to take
measures to tackle such a health crisis. Being a welfare state11, Republic of Chester took such
measures in order to help the women and save their reproductive rights.
10. Further Mr. Cristaniniho was arrested secretly and placed in custody without any legal
recourse in accordance with the law which supports preventive detention law in Republic of
Chester12. Since he was considered to be indulging in reckless profiteering and the prime
accused in the health crisis created by him through this clinical trial in the State of Chester,
he has been subjected to preventive detention under the domestic law of Chester.13
11. Lastly company Profin has been taken over for violation of its constitution, rights of women,
breach of license and abuse of patent processes14. The arrangement between Profin and
government of Chester mandated that Profin needs to inform all progress of research, trials
and any adverse outcomes a Breach of which would lead to serious actions by Chester against
Profin.15 Profin launched research on a rare genome project that can have impacts on DNA
or genetic diversity secretly violating its obligation.16 Further it can confiscate any property
in its territory in order to protect its rights as sovereign and the rights of its citizens17.
12. Hence, Republic of Chester is justified in taking action against Profin and Mr. Cristianiniho
and the present case is not in relations to disputes 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
9
Moot Proposition, ¶ P.
10
Moot Proposition, ¶ P.
11
Moot Proposition, ¶ A.
12
Moot proposition, ¶ Q.
13
14
15
Moot proposition, ¶ I.
16
Moot proposition, ¶ O.
17
a breach of an international obligation and therefore the present case is not maintainable
before this court under Article 36 paragraph 2 of the Statute of International court of Justice.
A.2- ISLAND OF TINA HAS NOT EXHAUSTED ALL THE LOCAL REMEDIES.
13. It is contented that by virtue of Article 44(b) of the Responsibility of state for internationally
wrongful acts, 200118, the responsibility of the state cannot be invoked if a claim involves
exhaustion of local remedies and domestic legal remedy has not been exhausted yet. Further
under Article 14 of the International Law Commissions Articles on Diplomatic protection19
and International Law Commission’s Commentary20 provides for the rule of customary
international law requiring the exhaustion of local remedies as a prerequisite for the exercise
of diplomatic protection
14. In the context of diplomatic protection proceedings, the International Court of Justice has
recognized the essence of the local remedies rule as customary international law21. Both, the
Convention for the Protection of Human Rights and Fundamental Freedoms22, Article 35(1),
and the International Covenant on Civil and Political Rights23, Article 41(1)(c), require the
exhaustion of all domestic remedies before filing a claim under the Convention.
15. The procedural local remedies rule is designed to guarantee that "the State where the breach
occurred has an opportunity to remedy it by its own procedures, within the framework of its
own domestic system."24Non-compliance with the substantive duty to exhaust local remedies
renders a globally wrongful act inchoate, unfinished, or "not completed" in some
18
ILC (International Law Commission) Draft Articles on Responsibility of States for Internationally Wrongful
Acts with Commentaries, adopted on 9 June 2001.
19
ILC (International Law Commission) Draft articles on Diplomatic Protection, adopted on 9 August 2006.
20
ILC (International Law Commission) Draft articles on Diplomatic Protection with Commentaries, adopted on
9 August 2006.
21
Elettronica Sicula S.p.A. (ELSI) (United States of America v. Italy), Judgment, 20 July 1989; Interhandel
(Switzerland v. United States of America), Judgment - Preliminary Objections, 21 March 1959.
22
Convention for the Protection of Human Rights and Fundamental Freedoms, adopted on 4 November 1950.
23
International Covenant on Civil and Political Rights, adopted on 16 December 1966.
24
Interhandel (Switzerland v. United States of America), Judgment - Preliminary Objections, 21 March 1959.
circumstances25, such that there would be no breach of international law as a result of the
failure of an element of the wrongful act26.
16. In the present case, Mr. Cristianiniho was lawfully detained due to his indulgence in reckless
profiteering and being the prime accused in the health crisis created by him through the
clinical trial in the State of Chester27 It is to be noted that Mr. Cristianiniho has been detained
by Republic of Chester in accordance with the provisions in their domestic law which
supports preventive detention28. Hence detention of Mr. Cristianiniho without any legal
recourse is lawful by virtue of domestic laws of Chester with support preventive detention.
17. The takeover of Profin by the government was on account of breach of license, abuse of patent
and violating right of the women and constitution of Chester29. According to the arrangement
so reached between Republic of Chester and Profin, Profin was obliged to inform all the
progress of research, trials and any adverse outcome whatsoever a breach of which would
lead to serious actions by Chester against Profin30
18. However, Profin maintaining confidential data, communication with Island of Tina and
research on a rare genome project that can have impacts on DNA or genetic diversity revealed
by highest Intelligence Bureau of Chester31 are serious violations against the sovereignty,
public order and security of the state and effecting rights of 1.3 billion population of Chester.
25
Amco Asia Corporation and others v. Republic of Indonesia, ICSID Case No. ARB/81/1, Ad hoc Committee
Decision on the Application for Annulment, 16 May 1986; Ethyl Corporation v. The Government of Canada,
Award on Jurisdiction, 24 June 1998; Loewen Group, Inc. and Raymond L. Loewen v. United States of America,
ICSID Case No. ARB(AF)/98/3, Award, 26 June 2003; Ambiente Ufficio S.p.A. and others (formerly Giordano
Alpi and others) v. Argentine Republic, ICSID Case No. ARB/08/9, Decision on Jurisdiction and Admissibility,
8 February 2013; ST-AD GmbH v. The Republic of Bulgaria, PCA Case No. 2011-06, Award on Jurisdiction, 18
July 2013; Swissbourgh Diamond Mines (Pty) Limited, Josias Van Zyl, The Josias Van Zyl Family Trust and
others v. The Kingdom of Lesotho, PCA Case No. 2013-29, Judgment of the Singapore Court of Appeal [2018]
SGCA 81, [2019] 1 SLR 263, 27 November 2018; Interhandel (Switzerland v. United States of America),
Judgment - Preliminary Objections, 21 March 1959;
26
Demirkol, B. (2018) Judicial Acts and Investment Treaty Arbitration. Cambridge: Cambridge University Press
(Cambridge International Trade and Economic Law). doi: 10.1017/9781108182515.
27
Moot Proposition, ¶ Q.
28
Moot Proposition clarification No.24.
29
30
Moot proposition, ¶ I.
31
Therefore, it gives reasonable powers to the government of Chester to detain Mr.
Cristianiniho and take over Profin.
19. Further, Profin being a legal entity has the rights to avail domestic remedies by approaching
the courts in the State of Chester. However, Profin in the present case has not approached the
court regarding their takeover by the government and thereby have not exhausted their
domestic legal remedy so available to them. Hence the present case is therefore not
maintainable for reason that all domestic legal remedies have not yet being exhausted.
20. Hence, Island of Tina has not exhausted all the available domestic remedies in Republic of
Chester and therefore the present case is not maintainable before this court.
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 SOVEREIGN STATE?
21. It is contended before the Hon’ble Court, that women have agency over giving informed
consent and an inherent right to reproductive health. Further, the action taken by Chester to
protect the rights of its women is well within the scope of sovereign state. This contention
will be established in a three-fold manner, [B.1] International Law recognizes a right to
informed consent [B.2] Island of Tina has approached the court with uncleaned hands [B.3]
Right to reproductive health is enshrined under International Human Rights - Right to Life
and Right to Health, [B.4] The actions taken by Chester is within the ambit of its sovereign
rights.
[B.1] INTERNATIONAL LAW RECOGNIZES A RIGHT TO INFORMED CONSENT
22. The above contention is established in a twofold manner, [B.1.1] Informed consent is an
essential component of international human rights law [B.1.2] Informed consent is customary

international law [B.1.3] Informed consent is imperative to prevent gender-based
discrimination,
[B.1.1] Informed consent is an essential component of international human rights law
23. Universal Declaration of Bioethics and Human Rights affirms the need for informed consent
in all research involving human subjects.32 For all persons with the capacity to consent, any
medical intervention is only to be carried out with the prior, free and informed consent of the
person concerned.33 An exception to the principle is applicable only in the light of protection
of public health, rights and freedom of others or in furtherance of public safety.34
24. The doctrine of Informed Consent was formulated to impose a duty on physicians to disclose
all material risks.35Informed consent in medical research involving competent human
subjects, is informing each potential subject of the aims, methods, any possible conflict,
institutional affiliation of the researcher and any other relevant aspect of study.36
25. The large number of women who entered the first phase of trail run were entered into by the
men in their family.37 The absence of informed consent can be traced back to the trail run
conducted by Profin.38 Women, all of who with the capacity to consent should communicate
their independent and un-interfered consent for experimentation to be done with their
bodies.39
26. The doctrine of informed consent cannot be neglected in the above case as the objective of
the experiment was to research and develop biological compounds for longer life
32
World Medical Association, Declaration of Helsinki: Ethical Principles for medical research involving human
subjects, 25 (1964).
33
Universal Declaration on Bioethics and Human Rights, UNESCO, Art 6 (2005).
34
Universal Declaration on Bioethics and Human Rights, UNESCO, Art 27(2005).
35
Canterbury v Spence 464 F 2d 772 (1972).
36
World Medical Association, Declaration of Helsinki: Ethical Principles for medical research involving human
subjects, 25 (1964).
37
Moot Proposition ¶ J.
38
Moot Proposition ¶ N.
39
Reproductive Rights are Human Rights, UNITED NATIONS HUMAN RIGHTS OFFICE OF THE HIGH
COMMISSIONER, (Feb. 17, 2022, 13:13 AM) https://www.ohchr.org/documents/publications/nhrihandbook.
expectancy.40 Hence the exception clause does not apply to the experiment conducted by
Profin.
27. MedTel and Profin entered into a data sharing agreement on November 2020.41 Following
which, all personal data collected by Profin were shared with MedTel. Such a data sharing
agreement was not informed to the subjects of the trails, establishing the absence of informed
consent. The duty to disclose all material facts and risks (risk associated with sharing private
information to third party) lies within in the ambit of informed consent. 42 Profin did not
capacitate its patients with the necessary information, hence the data sharing agreement is a
breach of privacy.43
28. Therefore, it is submitted that informed consent is an indispensable part of international
human right law and the absence of informed will result in the research being illegal.
B.1.2 Informed consent is customary international law
29. All guidelines for health research regard the process of obtaining informed consent as a
fundamental prerequisite for conducting research.44
30. The four main principles of medical ethics are justice, non-maleficence, autonomy and
beneficence.45 Informed consent is based on the principle that individuals capable of giving
informed consent have a right to choose freely whether to participate in research 46 and that
each adult body of sound mind has the right to determine what can be done to his/her body47.
Informed consent protects the individual’s freedom of choice and respects the individual’s
40
Moot Proposition ¶ I.
41
42
Canterbury v Spence 464 F 2d 772 (1972).
43
Moot Proposition ¶ J
44
Zulfiqar A Bhutta, Beyond Informed Consent Bulletin of World Health Organization, WORLD HEALTH
ORGANIZATION https://www.who.int/bulletin/volumes/82/10/771.pdf
45
Gillon R, Philosophical Medical Ethics, pg 66-68 (1986)
46
Border v Lewisham and Greenwich NHS Trust 2015 EWCA Civ 8
47
Schloendorff v Society of New York Hospital 105 NE 92 (1914)
autonomy.48 Autonomy means self-governance of a person without others interference.49
Further, respect for patient’s autonomy is a part of respect for her human dignity.50
31. In the present case, the consent for inserting a chip and monitoring the results of trails
conducted by Profin on women of NIK rested with the men of the family.51 Men were allowed
to decide on whether their mother, wife, sister or daughter could enter into the trial without
considering the opinion of the women (subject of the trail).52 This clearly establishes the lack
of autonomy and bodily freedom the women of NIK faced. Since the trail allowed for
monetary benefits for all those who allowed a chip to be inserted, most men were lured into
consenting to subject the women of their families to the trail.53
32. For consent to be legally valid, three elements must be present, (i) consent must be given by
a person with capacity, (ii) consent must be based upon information about risks, (iii) consent
must be voluntary.54 The subjects of the Trail were mostly of a sound mind with an able
capacity to consent. However, Profin failed in informing the subjects about the risks
associated with the trails and the consent to the trail were not explicitly given by the subjects
to the trail thus is not free from interference.55 Therefore, valid consent is missing.
[B.2] ISLAND OF TINA HAS APPROACHED THE COURT WITH UNCLEAN HANDS
33. The doctrine of unclean hands relates to an equitable defense that bars relief to a party who
has engaged in inequitable behavior related to the subject matter of the party’s claim. 56 He
who comes to equity for relief must come with clean hands.57 Thus a State which is guilty of
48
International Ethical Guidelines for Health-related Research Involving Humans, Guideline 9
https://cioms.ch/wp-content/uploads/2017/01/WEB-CIOMS-EthicalGuidelines.pdf
49
Fariba Asghari, Ethical Analysis of Husband’s Consent to his wife’s treatment, TEHRAN UNIVERSITY OF
MEDICAL SCIENCES Vol. 4 No 3, 81-83 (2017)
50
International Bio Ethics Committee, THE PRINCIPLE RESPECT FOR PATIENT’S AUTONOMY IS A PART
OF RESPECT FOR HER HUMAN DIGNITY 83 (56p 2013)
51
Moot Proposition ¶ J
52
53
54
(Grubb, Liang, & McHale, 2010, ¶ 8.68.
55
56
Netherlands v Belgium ICGJ 321 (PCIJ 1937).
57
Nicaragua v United States of America [1986] ICJ Rep 259.
illegal conduct may be deprived of the necessary locus standi in judicio for complaining of
corresponding illegalities on the part of other States.
34. a) Island of Tina has violated informed consent – Profin did not obtain informed consent
from the Women of NIK before the commencement of the trails, thus the trail can be proved
to be illegal and the research amounts to illegal interference with the body of an
individual.58Thus, it is submitted that Island of Tina violated the doctrine of informed consent,
and hence is party with unclean hands. Therefore, Island of Tina cannot approach the court
for relief.
B.3 RIGHT TO REPRODUCTIVE HEALTH IS AN ESSENTIAL COMPONENT OF INTERNATIONAL

HUMAN RIGHTS LAW
35. The above contention is established in a threefold manner, [B.3.1] Right to reproductive
health is enshrined in Article 12 of the ICESCR and Article 6 of the ICCPR [B.3.2] Right to
reproductive health is customary international law [B.3.3] Island of Tina has violated the right
to reproductive health of Chester’s citizens
B.3.1 Right to reproductive health is enshrined in Article 12 of the ICESCR and Article 6
of the ICCPR
36. Human Rights Conference states that, “All human rights are universal, indivisible and
interdependent and interrelated. While the significance of national and regional particularities
and various historical, cultural and religious backgrounds must be borne in mind, it is the duty
of States, regardless of the political, economic and cultural systems, to promote and protect
all human rights and fundamental freedoms”
37. Reproductive health is clearly encompassed within the right to health, but also has a strong
connection with other human rights that are interrelated and complementary59. Interests
related to reproductive health can therefore be protected, not only on the basis of the right to
58
Informed Consent, STANFORD ENCYCLOPEDIA OF PHILOSOPHY, Vol Spring 2019), pg 44 – 45.
59
Jackson Namunya Tali v. The Republic of Kenya (2017) eKLR HC.
health, but through several specific human rights recognized in international human rights
law, as reproductive health occupies an interactive position between several specific rights.60
38. Reproductive freedom is largely 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 including sexual and reproductive health”61
39. The right to reproductive health can be further broken down into freedoms and entitlements.62
Freedom refers to the right to be free from discrimination and the freedom to control one’s
own body including sexual and reproductive freedom.63
40. In the above case, the women of NIK are deprived of the freedom to reproductive health. The
usage of the pill has caused increased number of stillbirths and neonatal deaths64. Alongside
reproductive issues, women also faced menstrual problems which worsened their
reproductive system.65 It can be recognized that women who entered the trails conducted by
Profin lost the freedom to control their body and subsequently the freedom to make
reproductive decisions.
41. International Conference on Population and Development, Cairo 1994 showcased a paradigm
shift towards recognizing reproductive health as a human right.66 Reproductive health was
defined as, “a state of complete physical, mental and social well-being and not merely the
absence of disease or infirmity, in all matters relating to the reproductive system and to its
functions and processes.” Reproductive health implies that people are able to have a satisfying
and safe sex life and that they have the capability to reproduce and the freedom to decide if,
when and how often to do so.
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
Committee On Economic, Social and Cultural Rights, General Comment 14.
62
RJ Cook, Women’s Reproductive Rights, INTERNATIONAL JOURNAL OF GYNECOLOGY AND
OBSTERICS (1994).
63
Joshephine Oundo Ongwen v Attorney General 2016 eKLR.
64
65
Moot Proposition ¶ M.
66
United Nations sexual and reproductive health agency; International Conference on Population and
Development, (1994).
42. Hence it is submitted that States have an obligation to respect, protect and fulfill rights related
to a women’s sexual and reproductive health.67 Reproductive right is highlighted to be a
fundamental human right, hence there exists an obligation to protect and safeguard the
reproductive health and freedom of women.68
43. Article 6(1) of the Political Covenant provides that: "Every human being has the inherent
right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his
life.69 The most obvious human right violated by avoidable actions of Profin is not restricted
to childbirth but also the cumulative result of health disadvantages that the women will face.70
44. Thus, Right to Reproductive health is a substantial part of Right to Life and Right to Health
hence is protected by International Human Rights. Therefore, the State has an obligation to
ensure that Right to Reproductive health is upheld and no such act which is violative of human
rights shall be allowed to continue.
B.3.2 Right to reproductive health is customary international law
45. CEDAW indicates that women’s right to health includes their sexual and reproductive
health.71 The need for reproductive safety of the women and the child guarantees women
equal right in deciding freely and responsibly on the number and spacing of their children and
to have access to the information, education and means to enable them to exercise these
rights.72 In this case, the reproductive health of a women is a predominant part of health. 73
Women of Chester need to be assured of their reproductive safety and all other aiding services
to ensure safe reproductive health need to be provided.
67
Committee on Economic, Social and Cultural Rights, (2016), General Comment 22.
68
Millicent Awuor & Margaret Anyoso Oliele v Attorney General (2008) AHRLR 43.
69
International Covenant on Civil and Political Rights, Art. 6.
70
Rebbeca J Cook, The Promotion and Protection of Women’s Health through International Human Rights Law,
WOMENS HEALTH AND HUMAN RIGHTS, pg 23.
71
Committee on Economic, Social and Cultural Rights, (1988) art. 12
72
Committee on the Elimination of Discrimination against Women, (1979), Art.16.
73
Issues in reproductive health, UN WATCH, https://www.un.org/womenwatch/daw/csw/issues.htm.
46. Further, the provision of maternal health services is a core obligation which cannot be
derogated from under any circumstances, hence the State has to take immediate, deliberate,
concrete and targeted steps towards fulfilling right to reproductive health.74
47. International Human Rights asserts that state is obligated to work towards providing efficient
maternal health services, however the trails conducted by Profin on women of NIK resulted
in Island of Tina disobeying international human right standards as the trails conducted were
detrimental to the reproductive health of the women.75
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.76 Further denial of legal
reproductive care amounts to violation of human rights.77 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.78
49. In the light of the above case, for an objective of providing greater life expectancy, a women
cannot be denied her reproductive rights.
B.3.3 Island of Tina has violated the right to reproductive health of Chester’s citizens
50. The Winterstark pill consumed by the women of NIK led to reproductive complications
during the second round of trials.79 Their menstrual health was immensely affected – irregular
periods, excessive bleeding etc. Subsequently the reproductive health of the women of NIK
faced a drastic fall.80 The people in NIK were constantly challenged with still births and
neonatal deaths. Hence it is submitted that, Profin cannot promote a drug that increases life
expectancy at the cause of the reproductive health of the women.
74
Committee on Economic, Social and Cultural Rights, (2000) General Comment 14.
75
76
Committee on Economic, Social and Cultural Rights, (2016) General Comment 22.
77
R.R v Poland – European Court of Human Rights [2011] ECHR 828.
78
Alyne da Silva Pimentel v Brazil CEDAW, UN Doc CEDAW/C/49/D/17/2008 (2011).
79
80
51. Therefore, Island of Tina which partly owns the company Profin is guilty of violation of the
reproductive rights of Chester’s citizens.
B.4 ACTIONS OF CHESTER WERE WITHIN STATE SOVEREIGNTY

52. The above contention is established in a twofold manner, [B 4.1] States have absolute
sovereignty within their territory [B.4.2] State welfare prevails over State obligation
B.4.1 States have absolute sovereignty within their territory
53. No argument can possibly justify intervention against a sovereign state.81 Jurisdictional
sovereignty of State permits immediate actions to be taken against a state for violation of
international humanitarian law.82 The United Nations Charter replicates, the “domestic
jurisdiction dichotomy” – internal human rights are “essentially within the domestic
jurisdiction of any state” and hence insulated from international law.83
54. The actions taken by Chester thus can be justified as being within the ambit of sovereign
rights of state as the State can take all measures to safeguard the welfare of its people and
country in the event of a violation of human rights. The conduct of trails and the subsequent
consumption of the Winter stark pill led to violation of international humanitarian law,
harming the health of women across the state of NIK. Since the State of NIK is situated in the
Chester, the country has jurisdiction and territorial authority over the subjects of NIK84
including the Company Profin situated in NIK, thus can take any action in order to safeguard
internal human rights.
55. In conclusion, the actions of the Chester are justified under sovereign rights of state.
81
UN Doc. S/PV.2902, at 7.
82
Germany v Italy ICGJ 434.
83
Reisman, W. Michael. “Sovereignty and Human Rights in Contemporary International Law.” The American
Journal of International Law, vol. 84, no. 4, American Society of International Law, 1990, pp. 866–76,
https://doi.org/10.2307/2202838.
84
B.4.2 State welfare prevails over State obligation
56. 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.85
57. The situation in Chester following the establishment of results of the 2nd round of trails –
women suffered several adverse health consequences, still births and neonatal deaths causing
a disparity in the ratio to male and female children born86, caused a public emergency. Thus,
the State is justified from upholding its obligations to the covenant and prioritizing the public
welfare over reproductive rights of individuals.
58. Everyone has the right to an effective remedy by the competent tribunal for acts violating the
fundamental rights granted him by the constitution or by law.87 In the above case, the trails
conducted by Profin resulted in drastically affecting the reproductive rights of women of
Chester. Right to reproductive health is entailed under right to health, hence is a fundamental
right.88 In the light of violation of fundamental rights, the government of Chester is entitled
to remedy which includes the banning of the Winter Stark Pill.
ISSUE C- WHETHER CHESTER COULD CONFISCATE PROFIN AS IT DID UNDER THE POWERS
COMPENSATION AND APOLOGY OR ANY OTHER REMEDIES IN INTERNATIONAL LAW?
59. It is humbly contended before this Hon’ble court that Chester can confiscate Profin. Further
the detention of Mr. Cristaniniho was lawful and justified. Chester does not owe any remedy
in form to Island of Tina. This contention is sought in a four-fold manner: [C.1] Confiscation
85
International Covenant on Civil and Political Rights, (1966), Art 4.
86
87
Universal Declaration of Human Rights, (1948), Art.8.
88
International Covenant on Civil and Political Rights, (1966) Art.4.
of Profin does not violate international law of property laws; [C.2] Arrest, Detention and
expulsion of Mr. Cristaniniho is not a violation of his Human rights guaranteed under
International Law; [C.3] Detention of Mr. Cristaniniho
C.1 CONFISCATION OF PROFIN DOES NOT VIOLATE INTERNATIONAL LAW OF PROPERTY

LAWS
60. It is contended that confiscation of Profin does not violate international law of property laws
since [C.1.1] It is within Chester’s sovereign power to confiscate Profin and [C.1.2]
International law recognizes a right to confiscate property by state within its territory
C.1.1 It is within Chester’s sovereign power to confiscate Profin
61. It is humbly contended before this Hon’ble court that it is within Chester sovereign power to
confiscate Profin since [C.1.1.1] Profin is a foreign company operating in Chester’s territory
and [C.1.1.2] Chester has absolute sovereignty within its territory and its acts are justified by
sovereignty
C.1.1.2 Chester has absolute sovereignty within its territory and its acts are justified by
sovereignty
62. It is contended that Chester the principle of sovereignty is established among several
international documents with universal value. The United Nations Declaration of 197089
establishes that the main constitutive elements of sovereignty are the following:
63. All states are equal in legal terms; each State enjoys the inherent rights in full sovereignty;
every state has the right to freely choose and develop its political, social, economic and
cultural system; every state has an obligation to respect the personality of other states;
territorial integrity and political independence of the State are inviolable; each is required to
discharge in full and in good faith its international obligations and to live in peace with others.
89
UN General Assembly, Declaration on Principles of International Law concerning Friendly Relations and
Cooperation among States in accordance with the Charter of the United Nations, 24 October 1970,
A/RES/2625(XXV).
64. The principle of sovereign equality is present as the basis for cooperation of UN member
states, under article 2, paragraph 1 of the Charter of the United Nations90.
65. The arbitrator Max Hube said in the Palmas Island Deal (USA vs. Netherlands) case that
“Sovereignty in the relations between States signifies independence; Independence in

regard to a portion of the globe is the right to exercise therein, to the exclusion of any
other State, the functions of a State. The development of the national organization of States
during the last few centuries and, as a corollary, the development of international law,
have established this principle of the exclusive competence of the State in regard to its own
territory in such a way as to make it the point of departure in settling most questions that
concern international relations.”91
66. In the instant matter, Chester has absolute sovereignty over its territory. Sovereignty
includes having independence over property within its territorial limits. It is submitted that
confiscation of Profin is justified by Chester’s sovereignty.
C.1.2 International law recognizes a right to confiscate property by state within its
territory
C.1.2.1 Profin violated Chester’s internal laws
67. It is contended that Profin violated internal laws of Chester. he element of “incompatibility”
in near-identical provisions in the VCDR92 and VCCR93 refers to activity that violates the
receiving State’s laws and to acts that fall outside the typical, designated functions of the
mission
68. Profin was negligent in carrying clinical trials at a large scale without prior research on side
effects of the medicine.94 “Profin”, carried out research on a rare genome project that can have
impacts on DNA or genetic diversity threatening the health of Chester’s citizens.95
90
United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI.
91
Netherlands v. USA (Palmas Island Deal), April 4, 1928, RSA, vol. II, p. 838.
92
Vienna Convention on Diplomatic Relations (1964), 500 U.N.T.S. 95, Art.41(1).
93
UNITED NATIONS, Vienna Convention on Consular Rights, 1963, 596 U.N.T.S. 261, Article 55(1).
94
95
C.1.2.2 Profin violated human rights in Chester
69. It is contended that the Island of Tina, who owns considerable shares in Profin, has an
international obligation to respect and not violate human rights. It violated the inherent right
to life96, which is inclusive of right to health by threatening health of women.
C.1.2.3 Profin breached contract with Chester
70. It is contended that Profin breached contractual obligations with respect to research sharing
obligation. Chester can refuse from granting protection and refuse or on accounts of Breach
of contract from Profin, an accepted principle in contractual law.
C.1.2.4 Island of Tina is not entitled to State immunity under International Customary
law
71. It is contended that Though States are immune from domestic jurisdiction of other States
under customary international law97, there is no such law requiring the extension of protection
to state-owned enterprises and entities.98 Treating state-owned corporations as
"instrumentalities" of the state, subject to the presumption of sovereign immunity, is a
characteristic of some States' domestic laws99 and not a customary norm.100 Other States only
offer acta jure imperii protection101 to state-owned entities, while some do not grant sovereign
immunity to independent legal entities at all.102
72. States voiced differing opinions on whether state-owned firms with independent legal persons
might benefit from State immunity during the development of the United Nations Convention
on Jurisdictional Immunities of States and Their Property, reflecting differing domestic
96
International Covenant on Civil and Political rights, 16 December 1966, United Nations, Treaty Series, vol.
999, p. 171 Art 6.
97
ANTONIO CASSESE, INTERNATIONAL LAW 99-101 (2005).
98
XIAODONG YANG, STATE IMMUNITY IN INTERNATIONAL LAW 278-279 (2015).
99
Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §1602–1611 (U.S.), §1603(b).
100
OBB Personenverkehr AG/Sachs, 136 S.Ct. 390 (2015) (U.S.).
101
State Immunities Act, 1978 c. 33, pt. I (U.K.), §14.
102
Central Bank of Nigeria Case, 65 I.L.R. 131 (Germany, 1975).
practices103. As a result, there is insufficient State practice and opinio juris104 to demonstrate
the crystallization of a norm granting immunity to state-owned enterprises, as supported by
scholarly opinion105.
73. Both approaches are consistent with international law commitments, and a State has the right
to refuse protection to foreign State-owned enterprises under its domestic laws.106 Profin is a
state-owned enterprise with its own legal personality. As a result, Republic of Chester is
abiding with its international law duties by denying Island of Tina the jurisdictional immunity.
C.1.2.5 In any case, there exists a right to expropriate property
74. It is contended that Expropriation is a perfectly legitimate measure for a state to adopt and
clearly not illegal as such under international law107. Additionally, there is no doubt that under
international law, expropriation of alien property is legitimate108 The Permanent Court in the
Certain German Interests in Polish Upper Silesia case noted that expropriation must be for
‘reasons of public utility, judicial liquidation and similar measures.109
75. Contrary to this position, in the Liamco case110, it was held that ‘the public utility principle is
not a necessary requisite for the legality of expropriation. It is to be noted, however, that the
1962 General Assembly Resolution on Permanent Sovereignty over Natural Resources
mentions this requirement111, although the 1974 Charter of Economic Rights and Duties of
States does not.112 The question may thus still be an open one113, although later practice
103
United Nations Convention on Jurisdictional Immunities of States and Their Property (2005), 44 I.L.M. 801
(U.N.Doc.A/59/22), Art.2; Report of the Working Group on Jurisdictional States and their Property, ILC
Yearbook (1999-II), ¶¶61-83.
104
North Sea Continental Shelf (Germany/Denmark, Germany/Netherlands), Merits, 1969 I.C.J. 3, ¶77.
105
Yang, 279; HAZEL FOX & PHILIPPA WEBB, THE LAW OF STATE IMMUNITY 353 (2008); David
Stewart, Current Developments: The UN Convention on Jurisdictional Immunities of States and Their Property,
99 AM. J. INT’L LAW 194, 199 (2005).
106
'Lotus', France v Turkey, Judgment, Judgment No 9, PCIJ Series A No 10, ICGJ 248 (PCIJ 1927).
107
De Sancllez v. Barlco Cerltral de Nicaragua and Others 770 F.2d 1385, 1397; 88 ILR.
108
AMCO v. Indonesia (Merits) 89 ILR, pp. 405, 466.
109
Polish Upper Silesia case, PCIJ, Series A, No. 7, 1926, p. 22.
110
Liamco v. Libya, 20 ILM, 1977, p. 1; 62 ILR, p. 141.
111
1962 General Assembly Resolution 1803 (XVII) on Permanent Sovereignty over Natural Resources, Para 4
112
Charter of Economic Rights and Duties of States , 1974 ,Article 2(2)c
113
Agip SpA v. The Government of the Popular Republic of the Congo, 1979, 67 ILR, pp. 319, 336–9.
suggests that general measures taken on a non-discriminatory basis for the public good would
not constitute unlawful expropriation.
76. Additionally, it has been argued that non-discrimination is a requirement for a valid and
lawful expropriation. Although it is not mentioned in the 1962 resolution, the arbitrator in the
Liamco case strongly argued that a discriminatory nationalization would be unlawful.114
Nevertheless, in that case, it was held that Libya’s action against certain oil companies was
aimed at preserving its ownership of the oil and was non-discriminatory.
77. In the instant matter, Chester has the right to expropriate property on grounds of public good.
The state has the power to decide the scope of ‘public good’ for its citizens. Profin’s violation
of Chester’s constitution and other domestic and threatening human rights and health of
citizens of Chester is a sufficient reason for Chester to expropriate property of Profin.
Additionally, the expropriation is said to be carried out in a non- discriminatory manner since
it wasn’t for reasons vested interest of ownership but rather violation of law.
C.2 DETENTION OF MR. CRISTANINIHO IS NOT A VIOLATION OF VIENNA CONVENTION ON

DIPLOMATIC RELATION.
78. It is contended that detention of Mr. Cristaniniho is not a violation of Vienna Convention on
Diplomatic relation since [C.2.1] Mr. Cristaniniho doesn’t fall within the definition of
‘Diplomat’ as per the convention and assuming he is a diplomat [C.2.2] Diplomatic agent
does not enjoy immunity against criminal jurisdiction of hosting state in case of exceptions
stated in Art 31 of the Convention
C.2.1 MR. CRISTIANINIHO DOESN’T FALL WITHIN THE DEFINITION OF ‘DIPLOMAT’ AS PER
THE CONVENTION
79. It is humbly contended before this Hon’ble court that Article 1 of the Vienna Convention on
Diplomatic Relations115 defines the key terms used in the Convention. The article specifically
114
Liamco v. Libya, 20 ILM, 1977, p. 1; 62 ILR, p. 141.
115
Vienna Convention on Diplomatic Relations,
defines nine terms—(a) head of the mission; (b) members of the mission; (c) members of the
staff; (d) members of the diplomatic staff; (e) diplomatic agent; (f) members of the
administrative and technical staff; (g) members of the service staff; (h) private servant; and
(i) premises of the mission. Definitions (a) to (h) of the Article that concern the various
categories of persons whose appointment, privileges, and immunities are prescribed by the
Convention are almost entirely formal in character.
80. Diplomatic immunity or rights thereof are granted to only persons in position of (a) to (h) as
per the convention. In particular, the definition of “head of mission” is confined to “the person
charged by the sending State with the duty of acting in that capacity”. The functions of
diplomatic missions are specifically mentioned in Article 3 of the convention.
81. Additionally, Article 4 mandates that there must be mutual consent (agreement) between the
sending and receiving state for the accreditation of the head of the mission116. The sending
State must ascertain in advance whether a person whom it proposes to accredit as head of its
mission to another State is persona grata with that State. If the agreement is not given, then
the person in question cannot be accredited117.
82. In the instant matter, Mr. Cristaniniho doesn’t fall within the definition of ‘head of mission’
or any other persons acquiring diplomatic immunity and rights. Mr. Cristaniniho is the
President and largest shareholder of Profin118, a company with Island of Tina’s investment119
but since the objective of his mission is for personal business interests and not to represent
the interests of the sending states nor is one of the functions listed in the Article 3 of the
convention. Furthermore, the factual matrix does not reflect that there was any agreement
between the sending and the receiving state i.e. Republic of Chester and Island of Tina for
116
Codification of the international law relating to diplomatic intercourse and immunities: Memorandum prepared
by the Secretariat, YILC, 1956, Vol. II, p. 132, para. 21.
117
Draft Articles on Diplomatic Intercourse and Immunities with commentaries, Yearbook of the International
Law Commission, 1958, vol. I, Page 90
118
Moot Proposition, Paragraph
119
Moot Proposition, 7 Prof. N. R. Madhava Menon Asian Mooting Competition, Page 46, Para (h)
the accreditation of Mr. Cristaniniho as a diplomat. A notification of persona grata was not
sent by the Republic of Chester in the matter of Cristaniniho.
83. It is thus submitted that Mr. Cristaniniho doesn’t fall under the definition of “diplomat”.
C.2.2 Assuming he is a diplomat, Diplomatic agent does not enjoy immunity against
criminal jurisdiction of hosting state in case of exceptions stated in Art 31 of the
Convention
84. It is contended that while Article 31 of the Convention120 exempts diplomatic agents from the
civil and criminal jurisdictions of host states, it also specifies exceptions for cases in which a
diplomatic agent may be subject to the civil and criminal jurisdiction of the host state. The
sub clause (3) of the articles establishes an exception when “a diplomatic agent is in a dispute
arising from commercial or professional business outside the scope of official functions” 121.
The stance of the convention on matters of commercial activity exercised by the diplomatic
agent is also clear from Article 42122 of the convention: ‘A diplomatic agent shall not in the
receiving State practice for personal profit any professional or commercial activity.’
85. The draft Code drawn up by the Institute of International Law in both 1895 and 1929 versions
provided that immunity from jurisdiction could not be invoked by a diplomat in relation to a
professional activity outside his official functions.123 The exception was added to the text of
the draft articles of the International Law Commission in 1957 as a result of an amendment124.
86. Several States, provide expressly in their national legislation for an exception to immunity in
the case of private commercial activities. The law of India, for instance, provided for an
exception where the diplomat ‘by himself or another, trades within the local limits of the
jurisdiction of the court’. The law of Norway stated that ‘if he engages in trade or business,
he shall be subject in respect thereto to the Constitution and the laws of the country’. Swiss
120
Vienna Convention on Diplomatic Rights, 1961, Article 31.
121
Vienna Convention on Diplomatic Rights, 1961, Article 31(3).
122
Vienna Convention on Diplomatic Rights, 1961, Article 42.
123
1895–6 Institut de Droit International Annuaire p 240; 1929 vol II p 207; 26 AJIL (1932 Supp) 162 (Art 16 at
164), 186 (Art 13 at 187).
124
ILC Yearbook 1957 vol I pp 97–8.
law related the exception to ‘a lucrative activity outside his official functions’. The law of
South Africa referred to ‘any transaction entered into by him in his private and personal
capacity for the purposes of trade or in the exercise of any profession or calling’125.
87. In the instant matter, Mr. Cristianiniho owns private shares in Profin, he’s under the exception
clause (3) of Article 31 as per the VCDR as is subject to the jurisdiction of Republic of Chester
on matters of indulging in reckless profiteering and the prime accused in the health crisis
created by him through this clinical trial in the State of Chester.126
C.3 ARREST, DETENTION AND EXPULSION OF MR. CRISTIANINIHO IS NOT A VIOLATION OF

HIS HUMAN RIGHTS GUARANTEED UNDER INTERNATIONAL LAW
88. It is contended that Arrest, Detention and expulsion of Mr. Cristaniniho is not a violation of
his Human rights guaranteed under International Law since [C.3.1] it does not violate
International Covenant on the Civil and Political Rights, [C.3.2] it does not violate consular
rights
C.3.1 It does not violate International Covenant on the Civil and Political Rights
89. It is humbly contended before this hon’ble court that Mr. Cristaniniho [C.3.1.1] arrest,
detention and [C.3.1.2] expulsion was consistent with the International Covenant on the Civil
and Political Rights
C.3.1.1 Mr. Cristaniniho arrest and detention were consistent with the ICCPR
90. It is contended that Mr. Cristaniniho’s arrest and detention were consistent with the
International Covenant on the Civil and Political Rights. ICCPR Article 9 protects individuals
from arbitrary detention.127 States can legitimately detain persons without criminal charges in
a way that is entirely compliant with the ICCPR.128 This view is supported by the practice of
125
UN Laws and Regulations pp 65, 112, 167, 224, 243, 308, 330.
126
127
International Covenant on Civil and Political rights, 16 December 1966, United Nations, Treaty Series, vol.
999, p. 171, Art 9.
128
Louis Joinet, Special Rapporteur, Report on the Practice of Administrative Detention,
U.N.Doc.E/CN.4/Sub.2/1990, 29 (1990); Schweizer v. Uruguay, (66/1980), ¶18.1 (1980); HRC, General
Comment No.29, U.N.Doc.CCPR/C/21/Rev.1/Add.11, ¶15 (2001).
ICCPR Parties129, which this Court must examine.130 Though the ICCPR's substantive
protections against deprivation of liberty are similar to those provided by customary law, the
ICCPR's procedural safeguards are more stringent than custom.131
a) Mr. Cristaniniho arrest was not arbitrary
91. Mr. Cristaniniho detention accorded with procedures established by law. Preventive detention
is arbitrary when it is not conducted according to clear procedures established by domestic
law.132 Hence, arrest and subsequent detention must be specifically authorized and sufficiently
circumscribed by law.133 Mr. Cristaniniho was found to be indulging in reckless profiteering
and the prime accused in the health crisis created by him through this clinical trial in the State
of Chester.134 The investigation of his involvement and for matters of confidential data
maintained by Profin and communications with Island of Tina which revealed that under the
guise of doing research, “Profin” has launched research on a rare genome project that can
have impacts on DNA or genetic diversity was carried out by the The highest Intelligence
Bureau of Chester.
b) Mr. Cristaniniho’s detention was necessary and proportional to the threat he posed
92. Preventive detention must be necessary and commensurate to the threat that the subject
poses135, such that the restriction of liberty is neither excessive, unpredictable, or substantively
129
2 PREVENTIVE DETENTION AND SECURITY LAW: A COMPARATIVE SURVEY (Harding et al., eds.
1993) (examining preventive detention in 17 African, Asian, and European States); S.B. Elias, Rethinking
“Preventive Detention” from a Comparative Perspective, 41 COL. H.R.L.R. 130 (2009).
130
Vienna Convention on the Law of Treaties, 1969, United Nations, Treaty Series, vol. 1155, p. 331, Art.31(3)(b).
131
Report of the Working Group on Arbitrary Detention, U.N.Doc.A/HRC/22/44, , ¶¶42-51 (2012).
132
HRC, General Comment No.35, U.N.Doc.CCPR/C/GC/35, ¶¶22, 23 (2014); International Covenant on Civil
and Political rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171 Art 9.
133
Y DINSTEIN, ‘Right to Life, Physical Integrity, and Liberty’ , in L Henkin (ed), The International Bill of
Rights ( Columbia University Press , 1981), 130.
134
135
Arbitrary Detention, U.N.Doc.A/HRC/Res/6/4, ¶5(e) (2007); HRC, General Comment
No.31,U.N.Doc.CCPR/C/21/Rev.1/Add.13, ¶6 (2004); A./Australia, CCPR/C/59/D/560/1993, ¶9.2 (1997);
C./Australia, CCPR/C/76/D/900/1999, ¶14 (2002);.
unjust.136 Courts demand that detention be reasonable in the circumstances137 and that no other
way of accomplishing the objective138 could be found. State authorities' judgements on the
need and proportionality of detentions for security reasons are given great credence by
international139 and national tribunals.
c) Mr. Cristaniniho’s detention was reasonable because he posed an imminent and severe
threat.
93. Preventive detention is an exceptional step,140 reasonable when the detainee poses an
imminent and severe threat to State141. The UN declaration on ‘Human Rights of Individuals
Who are not Nationals of the Country in which They Live’142 also provides national security,
public safety, public order, public health or morals or the rights and freedoms of others as
exceptions given to Right to liberty to movement. Mr. Cristaniniho was the prime accused in
a major health crisis that impacted a large population of Chester. The research carried by
Profin on rare genome143 under the leadership of Mr. Cristaniniho also posed a threat to life
and health of Chester’s citizens. Additionally, Profin under his leadership had also put in an
additional premium clause while carrying out the clinical trials wherein they would pay users
a sizeable compensation in case if they opt to let a chip in their nerves through a one-time
shot in the arm.144 This operation, if in wrong hands could also be a severe threat to the State
and its citizens. Mr. Cristaniniho’s detention was thus reasonable on the grounds stated above.
136
Van Alphen v. Netherlands, U.N.Doc.CCPR/C/39/D/305/1988, ¶5.8 (1989); Report of the Third Committee
on the ICCPR, U.N.Doc.A/4045, Annexes Agenda Item 32, ¶7 (1958)
137
Shafiq v. Australia, CCPR/C/88/D/1324/2004, ¶4.10 (2004); Morais v. Angola, CCPR/C/83/D/1128/2002,
¶6.1, (2005)
138
D. & E. v. Australia, U.N.Doc.CCPR/C/87/D/1050/2002, ¶ 7.2 (2006); Principles and Best Practices on the
Protections of Persons Deprived of Liberty in the Americas, OAS OEA/Ser/L/V/II 131 DoC.16, Prin. III.2 (2008).
139
Greece v. U.K. (Cyprus Case), 2 Y.B.E.C.H.R. (1959-1960), 176; Y. ARAI-TAKAHASHI, THE MARGIN
OF APPRECIATION DOCTRINE AND THE PRINCIPLE OF PROPORTIONALITY IN THE
JURISPRUDENCE OF THE ECHR, 180(2002)
140
Mukong v. Cameroon, CCPR/C/45/D/458/1991, ¶9.8 (1991).
141
Schweizer v. Uruguay, ¶114; General Comment No.35, U.N. Doc CCPR/C/GC/35¶15.
142
UN General Assembly, Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country
in Which They Live : resolution / adopted by the General Assembly, 13 December 1985, A/RES/40/144.
143
144
Moot Proposition, ¶ I.
d) No alternative means existed to mitigate the threat Mr. Cristaniniho posed
94. The HRC has observed that detention is necessary when a subject may flee145 or could thwart
an ongoing investigation. Mr. Cristaniniho is the prime accused in a major health crisis in
Chester. Judiciary Inquiry in this matter is important to curb the crisis as well to rectify the
situation.
C.3.1.2 Mr. Cristaniniho expulsion was consistent with the ICCPR
95. It is contended that Mr. Cristaniniho’s expulsion was consistent with the ICCPR. Article 13
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 and shall, except where compelling reasons of
national security.
96. While position of some cases146 of the Human Rights Committee suggest that the rights of an
alien to submit reasons against his expulsion and if not afforded with such opportunity is a
violation of ICCPR. But, in contrast, the Human Rights Committee has also concluded that
the rights of an alien to submit reasons against his expulsion, to have his case reviewed by
the competent authority, and to be represented for that purpose, may only be departed from
when ‘compelling reasons of national security’ so require.147
97. The European Convention on Establishment148 holds a similar position in this matter. The
nationals of other contracting states lawfully residing in the territory may be expelled if they
endanger national security or offend against public order or morality. The burden of proving
the wrongfulness of the expelling state's action falls upon the claimant alleging expulsion149.
145
A V. Australia, CCPR/C/59/D/560/1993, ¶9.5 (1997).
146
Giry v. Dominican Republic, Communication No.193/1985, HRC 1990 Report, Annex IX.C.
147
Human Rights Committee, General Comment 15 (1986).
148
European Convention on Establishment, 1956, Article 3.
149
Rankill v. The Islanric Republic of Iran 17 Iran-US CTR, pp. 135, 142; 82 ILR, pp. 204, 214. GOODWIN-
GILL, INTERNATIONAL LAW AND THE MOVEMENT OF PERSONS, Brownlie, Principles, p. 522; M.
PELLONPAA, EXPULSION IN INTERNATIONAL LAW, 1984
Many municipal systems provide that the authorities of a country may deport aliens without
reasons having to be stated150.
98. The council of France in a case151 noted that existing law provided that an alien holding a
residence permit may be expelled at any time in the event of a serious threat to public order.152.
99. In the instant matter, Mr. Cristaniniho’s expulsion order was issued by the Ministry of Internal
Protection and Security, a competent authority to do so. Mr. Cristaniniho posed an imminent
threat to public order, public health and security of the nation. Mr. Cristaniniho was the prime
accused in a major health crisis that impacted a large population of Chester. The research
carried by Profin on rare genome153 under the leadership of Mr. Cristaniniho also posed a
threat to life and health of Chester’s citizens.
C.3.2 IT DOESN’T VIOLATE HIS CONSULAR RIGHTS
C.3.2.1 RIGHT TO CONSULAR ACCESS SHOULD BE IN CONFORMITY WITH THE LAWS AND RULES OF
RECEIVING STATE
100. Article 36(2) of the Vienna Convention provides that the right to consular access shall be
exercised in conformity with the laws and regulations of the receiving State.154 In the context
of a foreign national in detention, the relevant laws and regulations contemplated by Article
36(2)155 are those that may affect the exercise of specific rights under Article 36(1), of Vienna
convention on consular relation.156 Thus, visits to persons in custody or imprisoned 'are
permissible in conformity with the provisions of the code of criminal procedure and prison
regulations.157
150
SHAW, MALCOLM N. INTERNATIONAL LAW. Cambridge, UK: Cambridge University Press, 2008. Print.
151
Decision No.97–389 of the Constitutional Council of France, 22 April 1997, Journal officiel de la République
francaise – lois et décrets, 25.04.1997, 6271, (1997) 1 Bulletin on Constitutional Case-Law 38
152
Human Rights Committee, General Comment 15 (1986).
153
154
Counter memorial submitted by the United State of America (LaGrand case) ¶ 79(2).
155
UNITED NATIONS, Vienna Convention on Consular Rights, 1963, 596 U.N.T.S. 261, Article 36, cl. 2.
156
Counter memorial submitted by the United State of America (LaGrand case) ¶79(2).
157
Draft Articles on Consular Relations, with commentaries 1961, article 36, ¶(5)
101. Accordingly, in many cases it may be difficult to say with any certainty whether, if contested,
a given treaty would be held under national law to fall within an internal limitation, or whether
an international tribunal would hold the internal provision to be one that is "notorious" and
"clear" for the purposes of international law.158
102. There is no suggestion whatever that any State Party thought that the proviso in Article 36(2)
in any way required remedies in the criminal justice process for failures to inform detained
foreign nationals that they could request consular assistance.159
103. In the present instant, Republic of Chester is free to implement Art 36(2) in conformity with
its domestic laws and regulations. Mr. Cristaniniho is identified as a threat to national
security, public health and order.
C.4 CHESTER IS NOT LIABLE TO PAY COMPENSATION, APOLOGY OR ANY OTHER REMEDY
UNDER INTERNATIONAL LAW
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.160
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. 161 Two
elements are identified. First, the conduct in question must be attributable to the State under
international law.
105.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
158
Draft Articles On the Law of Treaties with Commentaries, Yearbook of the International Law Commission,
1966, vol. II., Article (43).
159
Counter memorial submitted by the United State of America (LaGrand case) ¶80(3).
160
Draft Articles on Responsibility of States for Internationally Wrongful Acts, 2001, Art. 1.
161
ILC, Responsibility of States for Internationally Wrongful Acts, 2001, Supplement No. 10, UN Doc A/56/10,
["ARSIWA"], Art 2.
elements were specified, for example, by PCIJ in the Phosphates in Morocco case162. ICJ has
also referred to the two elements on several occasions.163
106.A State would be bound to pay reparation in any form only as a consequence of an
internationally wrongful act.164 In certain circumstances, the commission by one State of an
internationally wrongful act may justify another State injured by that act in taking non-
forcible countermeasures in order to procure its cessation and to achieve reparation for the
injury. Article 22165 deals with this situation from the perspective of circumstances precluding
wrongfulness. As a response to internationally wrongful conduct of another State,
countermeasures may be justified only in relation to that State.166
107.In the instant matter, All Action taken by Chester including those of banning abortion,
contraceptives, confiscation of Profin’s property and detention of Mr. Cristaniniho were done
in countermeasure to Island of Tina’ s wrongful acts including those of violating human right
law.
108.It is thus submitted that Chester is not liable to pay compensation, apology or any other
remedy under International Law.
162
Phosphates in Morocco, Judgment, 1938, P.C.I.J., Series A/B, No. 74, p. 10, at p. 28.
163
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).
164
ILC, Responsibility of States for Internationally Wrongful Acts, 2001, Supplement No. 10, UN Doc A/56/10,
["RSIWA"], Arts. 12, 31, 36.
165
Draft articles on Responsibility of States for Internationally Wrongful Acts, 2001, Art. 22.
166
Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, YEARBOOK
OF THE INTERNATIONAL LAW COMMISSION, 2001, vol. II, Part 2.

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 all the claims of Island of Tina against Republic of Chester are not
maintainable before this court.
2. DECLARE that women have agency over giving informed consent
3. HOLD that right to reproduction is an international human right, which Island of Tina
violated
4. HOLD that sovereign rights of Chester can be utilized to protect its women citizens
5. HOLD that it is within Chester’s sovereign powers to confiscate Profin
6. HOLD that Arrest, Detention and expulsion of Mr. Cristaniniho was lawful and the
subsequent denial of his diplomatic rights is justified and not a violation of international
law
7. DECLARE that Petitioners are not 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 Respondent shall duty bound
forever pray.
Sd/-
Agent for the Respondent

Respondent AJC11362

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PROF. N. R.

MADHAVA MENON ASIAN MOOTING COMPETITION

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 RESPONDENT

MEMORIAL ON BEHALF OF THE RESPONDENT I

List of Abbreviations ...............................................................................................................IV

MEMORIAL ON BEHALF OF THE RESPONDENT II

MEMORIAL ON BEHALF OF THE RESPONDENT III

ABBREVIATIONS ACTUAL TERMS

IPR Intellectual Property Rights

L Rev Law Review

O.A. Original Application

MEMORIAL ON BEHALF OF THE RESPONDENT IV

1. A V. Australia, CCPR/C/59/D/560/1993, ¶9.5 (1997). ................................................................. 23

MEMORIAL ON BEHALF OF THE RESPONDENT V

24. Interhandel (Switzerland v. United States of America), Judgment - Preliminary Objections, 21

MEMORIAL ON BEHALF OF THE RESPONDENT VI

TREATISES AND CONVENTIONS

MEMORIAL ON BEHALF OF THE RESPONDENT VII

UNITED NATIONS DOCUMENT

MEMORIAL ON BEHALF OF THE RESPONDENT VIII

12. HRC, General Comment No.29, U.N.Doc.CCPR/C/21/Rev.1/Add.11, ¶15 (2001). ..................... 23

MEMORIAL ON BEHALF OF THE RESPONDENT IX

2. (Grubb, Liang, & McHale, 2010, ¶ 8.68 ............................................................................ 10

MEMORIAL ON BEHALF OF THE RESPONDENT X

18. Issues in reproductive health, UN WATCH,

1. Moot Proposition ¶ I ....................................................................................................................... 10

MEMORIAL ON BEHALF OF THE RESPONDENT XI

3. Moot Proposition ¶ J............................................................................................................... 8, 9, 10

MEMORIAL ON BEHALF OF THE RESPONDENT XII

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 RESPONDENT XIII

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.

resident of Chester for the past 18 years.

to be inserted into their body for monitoring.

MEMORIAL ON BEHALF OF THE RESPONDENT XIV

nation-wide demand for the pill.

property of Profin was confiscated

MEMORIAL ON BEHALF OF THE RESPONDENT 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 TAKEN BY

[B.1] International Law recognizes a right to informed consent

[B.3] Right to reproductive health is an essential component of International Human Rights

[B.4] Actions of Chester were within state sovereignty

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.2] Detention of Mr. Cristaniniho is not a violation of Vienna Convention on Diplomatic

[C.3] Detention of Mr. Cristaniniho is not a violation of Vienna Convention on Diplomatic

MEMORIAL ON BEHALF OF THE RESPONDENT XVI

protect its women citizens

act of confiscation of Profin is justified by its sovereignty. International law recognizes