11D PDF

11D
REGIONAL ISHKAFEL COURT OF HUMAN RIGHTS
NALSAR UNHCR PUBLIC INTERNATIONAL LAW

MOOT COURT COMPETITION, 2022
CASE CONCERNING
The Nai’xan Refugees of the Republic of Alanor
THE DEMOCRATIC REPUBLIC OF NEW BALANAR

(APPLICANT)
v.
THE FEDERATION OF RAZZIL

(DEFENDANT)
MEMORIAL FOR DEFENDANT

MEMORIAL ON BEHALF OF DEFENDANT [TABLE OF CONTENTS]
TABLE OF CONTENTS
TABLE OF CONTENTS ....................................................................................................... II
LIST OF ABBREVIATIONS .............................................................................................. IV
INDEX OF AUTHORITIES ................................................................................................ VI
STATEMENT OF JUSRISDICTION ............................................................................. XIV
SUMMARY OF FACTS...................................................................................................... XV
ISSUES RAISED............................................................................................................. XVIII
SUMMARY OF ARGUMENTS ....................................................................................... XIX
ARGUMENTS ADVANCED .................................................................................................. 1
ISSUE I: THE DETENTION OF ASYLUM-SEEKERS BY RAZZIL DOES NOT

VIOLATE PRINCIPLES OF INTERNATIONAL LAW ................................................ 1
A. Razzil Has The Power To Detain And Also Provides Adequate Safeguards To The
Asylum Seekers .................................................................................................................. 1
B. Human Rights Of Nai’xans Are Not Absolute............................................................ 3
C. Right Of Asylum Is A Right Of A State, Rather Than Right Of An Individual ......... 4
ISSUE II: RAZZIL’S CLOSURE OF BORDERS IN LIGHT OF A PUBLIC

HEALTH CRISIS DOES NOT VIOLATE THE PRINCIPLE OF NON-
REFOULEMENT................................................................................................................. 5
A. Exceptions for Non-Refoulement .................................................................................. 5
B. Refoulement on the basis of national security does not amount to inhuman treatment
8
C. Rights to be curtailed during public health emergencies. ......................................... 11
ISSUE III: ..... THE ILLEGAL IMMIGRATION CONTROL BILL, 2019 DOES NOT
CONTRAVENE ARTICLE 31 OF THE REFUGEE CONVENTION AND
RAZZIL’S OTHER OBLIGATIONS UNDER INTERNATIONAL LAW ................. 13
A. Section 9 of the Illegal Immigration Control Bill, 2019 does not contravene Article
31 of the Refugee Convention and Razzil’s other obligations under international law ... 13
II
MEMORIAL ON BEHALF OF DEFENDANT [TABLE OF CONTENTS]
B. Section 20 of the Illegal Immigration Control Bill, 2019 does not contravene Article
31 of the Refugee Convention and Razzil’s other obligations under international law ... 15
ISSUE IV: ............. THE COUNTRIES APART FROM RAZZIL IN THE ISHKAFEL
UNION HAVE A DUTY TO SHARE THE RESPONSIBILITY TO OFFER
PROTECTION TO THE ASYLUM-SEEKERS AND ADDRESS THE REFUGEE
CRISIS…………………………………………………………………………………… 18
A. Britannia And Wadia Were The First Countries To Assesss Applications For
International Protection .................................................................................................... 18
B. Burden-Sharing And Co-Operation Is A Part Of International Obligations............... 19
PRAYER ............................................................................................................................. XXI
III
MEMORIAL ON BEHALF OF DEFENDANT [LIST OF ABBREVIATIONS]
LIST OF ABBREVIATIONS
SR. NO. ABBREVIATION EXPANSION
1. & and
2. ¶ Paragraph
3. App Application
4. Applicant Balanar
Articles on Responsibility of States for Internationally

5. ARSIWA
Wrongful Acts
6. Art. Article
7. CJEU Court of Justice of European Union
8. Defendant Razzil
9. ECHR European Convention on Human Rights of 1950
10. ECtHR European Court of Human Rights
11. Ed Edition
12. EU European Union
13. EXCOM Executive Committee
14. HRC Human Rights Commission
International Covenant on Economic, Cultural and

15. ICESCR
Social Rights of 1966
IV
MEMORIAL ON BEHALF OF DEFENDANT [LIST OF ABBREVIATIONS]
16. ICJ International Court of Justice
17. IHL Protocol Relating to Status of Refugees of 1967
18. IHRL International Human Rights Law
19. No Number
20. Ors Others
21. p Page number
22. para Paragraph
23. Razzil The Federation of Razzil
24. Refugee Convention Convention Relation to Status of Refugees of 1951
International Covenant on Civil and Political Rights

25. Refugee Protocol
of 1966
26. The Bill The Illegal Immigration Control Bill, 2019
27. UDHR Universal Declaration of Human Rights of 1948
28. UK United Kingdom
29. UN United Nations
30. UNGA United Nations General Assembly
31. UNHCR United Nations Human Rights Commission
32. v Versus
33. VCLT Vienna Convention on the Law of Treaties of 1969
V
MEMORIAL ON BEHALF OF DEFENDANT [INDEX OF AUTHORITIES]
INDEX OF AUTHORITIES
ECtHR Cases
A and others v the United Kingdom App no 3455/05 (ECtHR, 19 February 2009) [171-173]
.............................................................................................................................................. 20
Amuur v France App No 17/1995/523/609 (ECtHR, 25 June 1996) [533] ......................... 24
Bozano v France App No 9990/82 (ECtHR, 18 December 1986) [54]; HL v United Kingdom
App No 45508/99 (ECtHR, 5 October 2004) [114]. .............................................................. 9
Klass v Germany App no 5029/71 (ECtHR, 6 September 1978) [56] ................................. 10
Lawless v Ireland (No 3) App no 332/57 (ECtHR, 1 July 1961) [28] ................................. 20
MH and Others v Croatia App No 15670/18 and 43115/18 (ECtHR, 18 November 2021)
[294] ..................................................................................................................................... 18
ND and NT v Spain App No 8675/15 and 8697/15 (ECtHR, 13 February 2020) [201; 209-
211]....................................................................................................................................... 18
Riad and Idiab v Belgium App No 29787/03 and 29810/03 (ECtHR, 24 January 2008) [107].
.............................................................................................................................................. 11
Shahzad v Hungary App No 12625/17 (ECtHR, 8 July 2021) [59]..................................... 18
Uzun v Germany App no 35623/05 (ECtHR, 2 September 2010) [72] ............................... 10
Treaties, Conventions and International Declarations
Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22
April 1954) 189 UNTS 137 (hereinafter, ‘Refugee Convention’) ........................... 13, 15, 21
Convention for the Protection of Human Rights and Fundamental Freedoms (European
Convention on Human Rights, as amended) (hereinafter, ‘ECHR’) ................................... 10
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered
into force 23 March 1976) 999 UNTS 171 (hereinafter, ‘ICCPR’) ........ 9, 11, 13, 19, 23, 25
UNGA, ‘Declaration on Territorial Asylum’ A/RES/2312(XXII) art 3(2) ......................... 14
UNHCR, ‘International Convention for Migrant Workers and Their Families’ Fact Sheet No
24 (Rev.1) art 16................................................................................................................... 23
Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III)
(hereinafter, ‘UDHR’) .................................................................................................... 11, 12
VI
Vienna Convention on the Law of Treaties (United Nations) 1155 UNTS 331 (hereinafter,
‘VCLT’) art 32. .................................................................................................................... 21
National Legislations
Asylum and Immigration Appeals Act 1999.................................................................... 9, 11

Human Rights Act 1998, s 8 ................................................................................................ 10
Immigration Act 1971, schedule 2, para 16(1) A ................................................................... 9
Immigration Act 2016, schedule 10. .................................................................................... 11
Nationality, Immigration and Asylum Act 2002, part 5. ..................................................... 10
National Cases
David A. Martin, Reforming Asylum Adjudication: On Navigating the Coast of Bohemia,

138 UNIVERSITY OF PENNSYLVANIA LAW REVIEW 1247 (1990). ......................................... 13
Felice Morgenstern, The Right of Asylum, 26 BRIT. Y.B. INT'L L. 327 (1949). ................... 12
R (on the application of Muqtaar) v Secretary of State for the Home Department [2013] 1
WLR 649 .............................................................................................................................. 10
Secretary of State for the Home Department ex parte Saadi [2002] UKHL 41 .................. 10
UN Documents
Office of Commission of Human Rights, ‘Emergency Measures and Covid-19: Guidance’

(UNHCR) <www.ohchr.org/en/covid-19/covid-19-guidance> accessed 22 May 2022 ...... 17
Office of Commission of Human Rights, ‘Emergency Measures and Covid-19: Guidance’
(UNHCR, 27 April 2020)
<www.ohchr.org/sites/default/files/Documents/Events/EmergencyMeasures_COVID19.pd
f> accessed 11 June 2022. .................................................................................................... 17
OHCHR, ‘Chapter 16: The Administration of Justice During State Emergency’
<www.ohchr.org/sites/default/files/Documents/Publications/training9chapter16en.pdf >
accessed 10 June 2022.......................................................................................................... 20
Statute of International Court of Justice, art 38(1)(b) .......................................................... 20
UN ‘Declaration of State’ (1949) art 2................................................................................. 15
UN Charter (enacted 26 June 1945, entered into force 24 October 1945) A/RES/95
(hereinafter, ‘UN Charter’). ................................................................................................. 17
UN Committee on Economic, Social and Cultural Rights ‘General Comment 14’ in The
Right to the Highest Attainable Standard of Health (2000) UN Doc E/C.12/2000/4 .......... 16
VII
UN Group of Governmental Experts, ‘Report of the Group of Governmental Experts on

Developments in the Field of Information and Telecommunications in the Context of
International Security’ (22 July 2015) A/70/174 ................................................................. 17
UN High Commissioner for Refugees, ‘Aide Mémoire: Directive on Minimum Standards on
Procedures on Granting and Withdrawing Refugee Status’ (18 November 2003)
<http://www.unhcr.org/refworld/docid/402a2d6e4.html> accessed 1 June 2022 ............... 27
UN, ‘Declaration of State’ (1949) art 7................................................................................ 16
UN, Draft Conclusions on Identification Of Customary International Law, With
Commentaries’ (2018)
<https://legal.un.org/ilc/texts/instruments/english/commentaries/1_13_2018.pdf> accessed
18 May 2022......................................................................................................................... 20
UNGA Res 60/1 (16 September 2005) UN Doc A/RES/60/1 ............................................. 19
UNHCR, ‘Article 31 of the 1951 Convention Relating to the Status of Refugees’ (July 2017)
PPLA/ 2017/01 ..................................................................................................................... 22
UNHCR, ‘Global Compact for Safe, Orderly and Regular Migration’ (enforced 19 December
2018) A/RES/73/195. ........................................................................................................... 23
UNHCR, ‘Summary Conclusions on Article 31 of the 1951 Convention Relating to the Status
of Refugees’ (9 November 2001) <www.unhcr.org/419c783f4.pdf> accessed 19 May 2022
[10(c)] ................................................................................................................................... 22
UNODC, ‘Derogation in Times of Public Emergency’ (July 2018)
<www.unodc.org/e4j/en/terrorism/module-7/key-issues/derogation-during-public-
emergency.html> accessed 12 June 2022 ............................................................................ 19
World Health Organisation and Office of Commission of Human Rights, ‘Factsheet No 31:
Right to Health’ (1 June 2008) <www.ohchr.org/en/publications/fact-sheets/fact-sheet-no-
31-right-health> accessed 19 May 2022 .............................................................................. 18
World Health Organisation, ‘Statement on The Second Meeting of the International Health
Regulations Emergency Committee Regarding the Outbreak of Novel Coronavirus (2019-
Ncov)’ (2005) <www.who.int/news/item/30-01-2020-statement-on-the-second-meeting-of-
the-international-health-regulations-(2005)-emergency-committee-regarding-the-outbreak-
of-novel-coronavirus-(2019-ncov)> accessed 8 May 2022. ................................................. 17
World Health Organisation, Migration and Health (United Nations, 2020)
<www.who.int/europe/news-room/fact-sheets/item/migration-and-health-key-issues>
accessed 17 May 2022.......................................................................................................... 16
VIII
Journals
Christian Tomuschat, ‘A Right to Asylum in Europe’ 13 (1992) HRLJ 257, 258 .............. 13
David A Martin, ‘Reforming Asylum Adjudication: On Navigating the Coast of Bohemia’
(1990) 138 University of Pennsylvania Law Review 1247 ................................................. 13
Elspeth Guild, ‘The Europeanisation of Europe’s Asylum Policy’ 18 International Journal
for Refugee (2006) l 630, 637 .............................................................................................. 26
Esin Küçük, ‘The Principle of Solidarity and Fairness in Sharing Responsibility: More than
Window Dressing?’ (2016) European Law Journal 22 ........................................................ 26
Felice Morgenstern, ‘The Right of Asylum’ (1949) 26 BYB Intl Law 327......................... 12
Felice Morgenstern, ‘The Right of Asylum’ (1949) BRrr YB INT Law 327, 327 .............. 23
S Prakash Sinha, ‘An Anthropocentric View of Asylum in International Law’ (1971) 10
CJTL 78. ............................................................................................................................... 12
Books
Atle Grahl-Madsen, The Status of Refugees in International Law (2nd ed Chatham House
1972)..................................................................................................................................... 12
Fitzmaurice, ‘The Practical Working of the Law of Treaties’ in Malcolm D Evans (ed),
International Law (4th edn, OUP 2014) 166, 179 ............................................................... 21
Guy S Goodwin Will, Article 31 of the 1951 Convention Relating to the Status of Refugees:
Non-Penalization, Detention, and Protection (Cambridge University of Press, 2003) ....... 23
Guy S Goodwin-Gill, The Refugee in International Law (Oxford University Press, 1996).
.............................................................................................................................................. 22
Ian Martin, Foreword to Daniele Joly et al, Refugees: Asylum in Europe? (Minority Rights
Publications 1992). ............................................................................................................... 12
James Crawford, Brownlie ‘s Principles of Public International Law (8th ed, Oxford
University Press) .................................................................................................................. 12
Olivier Corten and Pierre Klein, The Vienna Conventions on the Law of Treaties: A
Commentary (OUP 2011) 807.............................................................................................. 21
S Irudaya Rajan, The Routledge Handbook of Refugees in India (Routledge India, 1st ed)15
Other Authorities
Asian-African Legal Consultative Committee, ‘Principles relating to the Treatment of

Refugees’ (8th Session) art III (2). ....................................................................................... 14
IX
Committee on Civil Liberties, Justice and Home Affairs, ‘Working Document on Article 80
TFEU – Solidarity and Fair Sharing of Responsibility, Including Search and Rescue
Obligations’ (European Parliament, 15 June 2015)
<https://www.europarl.europa.eu/doceo/document/LIBE-DT-564907_EN.pdf> accessed 7
June 2022.............................................................................................................................. 27
Council of Europe, ‘Resolution on Asylum to Persons in Danger of Persecution’ (29
September 1967) Resolution 67. .......................................................................................... 14
Court of Justice of the European Union, ‘Advocate General’s Opinion in Cases C-715/17
Commission v Poland, C-718/17 Commission v Hungary and C-719/17 Commission v
Czech Republic’ <https://curia.europa.eu/jcms/upload/docs/application/pdf/2019-
10/cp190133en.pdf> accessed 8 June 2022 ......................................................................... 28
Dublin Regulation III ........................................................................................................... 26
ECHR, ‘Guide on Article 4 of Protocol No 4 of European Court of Human Rights’
<www.echr.coe.int/Documents/Guide_Art_4_Protocol_4_ENG.pdf> accessed 13 June
2022 ...................................................................................................................................... 18
ECHR, ‘Guide on the case-law of the European Convention on Human Rights, Immigration’
<www.echr.coe.int/Documents/Guide_Immigration_ENG.pdf>accessed 11 May 2022 .... 18
ECHR, ‘Practical Guide on Admissibility Criteria’
<www.echr.coe.int/documents/admissibility_guide_eng.pdf> accessed 11 May 2022. ..... 18
European Charter on Human Rights, art 15 ......................................................................... 17
European Union Agency for Fundamental Rights, ‘Annex: EU Member States’ Legislation
on Irregular Entry and Stay, As Well As Facilitation of Irregular Entry and Stay’ (2014)
<https://fra.europa.eu/sites/default/files/fra-2014-criminalisation-of-migrants-
annex_en.pdf> accessed 12 May 2022................................................................................. 24
European Union Agency for Fundamental Rights, ‘Criminalisation of Migrants in An
Irregular Situation and Of Persons Engaging with Them’ (2014)
<https://fra.europa.eu/sites/default/files/fra-2014-criminalisation-of-migrants_en.pdf>
accessed 12 June 2022.......................................................................................................... 24
European Union, ‘Charter of Fundamental Rights of the European Union’ (enforced 26
October 2012) 2012/C 326/02 (hereinafter, ‘European Charter on Human Rights’) art 11 17
European Union, ‘Treaty on the Functioning of the European Union’ (enforced 1 January
1958) OJ L 326/47-326/390, art 80. ..................................................................................... 27
European Union, Directive 2011/95/EU, art 2(h). ............................................................... 26
EXCOM Conclusion No 15 (XXX) ‘Refugees Without an Asylum Country’ (1979) ........ 22
X
EXCOM Conclusion No 58 (XL) ‘The Problem of Refugees and Asylum-Seekers Who

Move in An Irregular Manner from A Country in Which They Had Already Found
Protection’ (1989). ............................................................................................................... 22
Government of India, ‘Guidelines for Quarantine facilities COVID-19’
<https://www.mohfw.gov.in/pdf/90542653311584546120quartineguidelines.pdf> accessed
12 May 2022......................................................................................................................... 16
Home Office, ‘Nationality and Borders Bill: A Differentiated Approach Factsheet’ (2 March
2022) <www.gov.uk/government/publications/nationality-and-borders-bill-differentiation-
factsheet/nationality-and-borders-bill-differentiation-factsheet> accessed 4 June 2022 ..... 23
Home Office, ‘New Plan for Immigration Policy Statement’ (24 March 2021)
<www.gov.uk/government/consultations/new-plan-for-immigration> accessed 17 May
2022. ..................................................................................................................................... 25
ICIBI ‘A Short Notice Inspection Of The Home Office Response To Lorry Drops’ (July
2016)
<https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_
data/file/540577/ICIBI_inspection_of_lorry_drops_July_2016.pdf> accessed 25 May 2022.
.............................................................................................................................................. 25
ICIBI, ‘An Inspection Of The Home Office’s Management Of Non-Detained Foreign
National Offenders’, <November 2017)
data/file/656584/An_inspection_of_non-detained_FNOs.pdf> accessed 19 May 2022...... 25
Independent Chief Inspector of Borders and Immigration, ‘An Inspection of The Home
Office’s Response to In-Country Clandestine Arrivals (‘Lorry Drops’) And to Irregular
Migrants Arriving Via Small Boats’ (November 2020)
data/file/933953/An_inspection_of_the_Home_Office_s_response_to_incountry_clandesti
ne_arrivals___lorry_drops___and_to_irregular_migrants_arriving_via__small_boats_.pdf>
accessed 17 May 2022.......................................................................................................... 25
International Commission of Jurists, ‘Judicial Accountability — A Practitioner’s Guide’
(International Commission of Jurists, June 2016) <www.icj.org/wp-
content/uploads/2016/06/Universal-PG-13Judicial-Accountability-Publications-Reports-
Practitioners-Guide-2016-ENG.pdf> accessed 5 June 2022. ............................................... 10
XI
M Colemar, ‘Conference of Plenipotentiaries on the Status of Refugees and Stateless

Persons, Summary Records’, UN doc A/CONF.2/SR.14 .................................................... 22
NCBI, ‘Understanding Emerging and Re-emerging Infectious Diseases’ (2007)

<www.ncbi.nlm.nih.gov/books/NBK20370/> accessed 18 May 2022 ................................ 17
Office of High Comiisioner, ‘Note on Non-Refoulement’ UN High Commissioner for
Refugees (UNHCR, 23 August 1977) <www.refworld.org/docid/3ae68ccd10.html>
accessed 10 June 2022.......................................................................................................... 13
Office of Human Rights Commissioner HRC, The Principle of Non-Refoulement (United
Nations Human Rights Commissioner, 2020),
<www.ohchr.org/sites/default/files/Documents/Issues/Migration/GlobalCompactMigration/
ThePrincipleNon-RefoulementUnderInternationalHumanRightsLaw.pdf> accessed 11 June
2022. ..................................................................................................................................... 15
Office of the United Nations High Commissioner for Refugees Division of International
Protection Services, ‘Conclusions Adopted by The Executive Committee on The
International Protection of Refugees’ (December 2009) <https://www.unhcr.org/en-
my/578371524.pdf> accessed 11 June 2022 ........................................................................ 15
Organization of American States, ‘American Convention on Human Rights, "Pact of San
Jose", Costa Rica’ (enacted 22 November 1969, entered into force 18 July 1978) (hereinafter,
‘Inter-American Convention on Human Rights’) art 27. ..................................................... 19
Richard Stainsby ‘UNHCR And Individual Refugee Status Determination’ (Forced
Migration Review) <www.fmreview.org/statelessness/stainsby> accessed 22 May 2022 .. 14
UNHCR ExCom, Conclusion on Detention of Refugees and Asylum-Seekers, para (b) .... 12
UNHCR, ‘Advisory Opinion on the Extraterritorial Application of Non-Refoulement
Obligations under the 1951 Convention relating to the Status of Refugees and its 1967
Protocol’ (26 January 2007) <www.refworld.org/docid/45f17a1a4.html> accessed 9 June
2022. ..................................................................................................................................... 15
UNHCR, ‘Handbook on Procedures and Criteria for Determining Refugee Status under the
1951 Convention and the 1967 Protocol relating to the Status of Refugees’
HCR/IP/4/Eng/REV.1 (January 1992). ................................................................................ 14
United Nations, ‘What are Travaux Préparatoires and How Can I Find Them?’ (18 March
2022) <https://ask.un.org/faq/14541> accessed 10 June 2022............................................. 14
Vincent Chetail, ‘Are Refugee Rights Human Rights? An Unorthodox Questioning of the
Relations between Refugee Law and Human Rights Law’
XII
<https://oxford.universitypressscholarship.com/view/10.1093/acprof:oso/9780198701170.0
01.0001/acprof-9780198701170-chapter-2> (Oxford Scholarship Online) accessed 7 June
2022 ...................................................................................................................................... 11
Other Cases of Different Jurisdictions
Commission v Czech Republic C-719/17 (2020).................................................................. 28

Commission v Hungary C-718/17 (2020) ............................................................................ 28
Commission v Poland C-715/17 (2020) ............................................................................... 28
Council Decisions (EU) 2015/1523 (14 September 2015) and 2015/1601 (22 September
2015) OJ 2015 L239/146 and L248/80 ................................................................................ 27
Durand and Ugarte v Peru IACHR Series C no 68 (2000) [9] ........................................... 19
G v G [2021] UKSC 9 .......................................................................................................... 14
HRC, Buffo Carballal v Uruguay Comm No 33/1978, UN Doc A/36/40 [125]. ................ 13
HRC, Malcolm Ross v Canada Comm No 736/1997 UN Doc CCPR/C/70/D/736/1997
[11.4]–[11.5]; Klass v Germany App no 5029/71 (ECtHR, 6 September 1978) [56] .......... 10
NS and ME C 411/10 and C 493/10 (2011) [79] .................................................................. 26
Reg v Bouchereau 2 CMLR 800 .......................................................................................... 14
Shamso Abdullahi v Bundesasylamt C-394/12 (2013) [53] ................................................. 26
Zambrano Velez v Ecuador IACHR Series C no 166 [45-47] ............................................. 20
XIII
MEMORIAL ON BEHALF OF DEFENDANT [STATEMENT OF JURISDICTION]
STATEMENT OF JURISDICTION
It is hereinafter most respectfully submitted that the applicant has exercised its erga omnes
obligations and brought an action against the defendant before the Hon’ble Court pursuant to
Article 331 of the European Convention of Human Rights. The defendant has submitted its
reply to the same.
Therefore, pursuant to Article 32(1)2 of the ECHR read with Article 33, this Hon’ble Court has
jurisdiction over the present case.
1
“Any High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention
and the Protocols thereto by another High Contracting Party.”
2
“The jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the
Convention and the Protocols thereto which are referred to it as provided in Articles 33, 34, 46 and 47.”
XIV
MEMORIAL ON BEHALF OF DEFENDANT [SUMMARY OF FACTS]
SUMMARY OF FACTS
[THE ISHKAFEL CONTINENT]

Ishkafel is a continent which comprises a group of 18 democratic countries having varying
socio-economic backgrounds and political structures. Of these 18 countries, 12 countries
including Razzil are located in the western part of Ishkafel, while the remaining 6 countries are
in the eastern part. The eastern countries have a long history of being colonized by some of the
powerful western countries who fought among themselves to control these eastern countries.
This resulted in the Treaty of Ancram dividing the east into six countries including Alanor and
New Balanar. Eventually after an era of war and mass migration, these countries got
independence in 1942. However, some of the countries since have remained active conflict
zones due to their complex history and ethnic composition owing to years of mass migration.
[NAI’XANS: A MINORITY IN ALANOR]

Alanor has been the hotspot for the majority of ethnic conflicts of different degrees due to
large-scale internal migration as well as fallacious border demarcations which impacted ethnic
composition in the country. The Clans of Minnerva and Kessaj are the dominant clans while
the clans of Shai and Nai’x are the other two clans in Alanor that find very little influence in
the country’s politics. Nai’x clan has been particularly has been always regarded as outsiders
by the rest of Alanor despite having lived there for generations. Nai’xans majorly based in the
state of Mangix have been often left ignored by the Government. They have been kept out of
the purview of government schemes on housing, education, and health and find it difficult to
find jobs in government departments. Despite their repeated requests for increased
representation, the government has side-lined them.
[NAI’XANS’ UPRISING]
In 1999, Ajax a young Nai’xan activist, publicly started discussing the problems of the
Nia’xans and lobbied for their rights. He subsequently gained popularity amongst the Nai’xans.
In December 2000, he wrote an article depicting the conditions of Nai’xans in a popular
newspaper column. Following this, young Nai’xan men were sensitized who organized
themselves into the Nai’x Peoples’ Liberation Movement (NPLM). NPLM was initially
involved in sensitizing Nai’xans of their rights, lobbying politicians and Alanor’s government
for better policies. The NPLM in 2006 decided to undertake more compelling measures and
elected Zeke Thrall as their Supreme Leader. The MPP and KPP, however categorised them as
XV
a “terrorist guerrilla group”. It was also reported that NPLM was receiving weapons from the
Rexxari Government. A protest of about 1,000 Nai’xans was organised outside the Governor’s
Palace in Juno to request him to take urgent measures for the betterment of his people. The
Governor however sent a battalion of 2000 armed para-military troops to control them. Many
protesters, seeing this as a disproportionate response, fought with the battalion. About 570
protesters were injured, and at least 237 died in the clash. Several Nai’xan leaders were
prosecuted for sedition and disrupting the peace and order of the state.
[THE FLEEING OF NAI’XANS FROM ALANOR]

September 2006 to April 2007 was an unfortunate event for Nai’xans. There was a general
sentiment of contempt against them. The police regularly started patrolling their settlement to
arrest anyone they thought was linked to the protest or NPLM. To escape the hardships, about
2,500 Nai’xans fled the country and entered the western countries Britannia and Wadia, which
share borders with Alanor, to seek asylum. However, their life in these countries was also
deplorable. Of the Nai’xans who fled, around 1000 refugees transited to Razzil, where these
refugees were initially welcomed by the government. Zeke mobilized a group of around 200
NPLM members on January 8, 2019 to simultaneously attack three government offices and
police stations near the Yunero Settlement. The government described this as Nai’xan
aggression and categrised them as terrorists. In January 2019, about 800 Nai’xans escaped
Alanor and entered Britannia and Wadia. Of these, 170 Nai’xans presented themselves before
the Wadian and Britannian RSDA while the remaining 630 Nai’xans entered into Razzil by
foot on February, 2019 as Razzil was considered a developed country having strong asylum
laws.
[DETENTION OF ASYLUM SEEKERS BY RAZZIL]

At the border, the 630 Nia’xans that entered Razzil claimed to be asylum-seekers fleeing from
persecution in Alanor. Prima facie evidence suggested that the new entrants had other self-
serving goals for illegally entering Razzil. There were also intelligence reports of terrorist
elements and organised crime groups planning attacks on Razzil. Seeing the sudden exodus of
asylum seekers from Alanor and considering the sovereignty of Razzil and safety of the
Razzilian citizens, the Razzilian Asylum Claims Department moved them to a newly
constructed detention facility in the southern suburbs of Moria. In the next few weeks, another
400 Nai’xans fled Alanor, and passed through Wadia and Britannia to claim asylum in Razzil
who were also moved to Moria.
XVI
[THE DISPUTE RELATING TO ASYLUM SHARING RESPONSIBILITY]

The Razzilian Government claimed that according to the WIAR, Razzil has no obligation to
process their asylum application. It stated that the 630 requests of asylum-seekers are bound to
be processed by Britannia and Wadia, since according to the WIAR, it is the duty of the first
country of asylum to process these applications. Moreover, most of the Nai’xans who are
claiming to be asylum-seekers have entered Razzil after passing through transit countries, and
staying there for long periods of time. The Government of Razzil subsequently sent a request
to Britannia and Wadia on February 20, 2019 to take back these asylum-seekers and process
their applications in their country. However, Britannia and Wadia responded to that that they
have no responsibility towards the asylum-seekers.
[PUBLIC HEALTH CRISIS IN RAZZIL]

In March 2019, a virus named Klobe Virus spread in the Zarda state in Razzil which further
escalated to the other parts of the country. Owing to the quick spread of the virus, the
Government of Razzil on April 18 declared a national emergency until further notice and closed
all the internal and external borders. The World Health Organization published precautionary
guidelines to inform the public about the virus. On April 19, the countries bordering Razzil
including Britannia, Wadia came out with a notification banning international travel and
closing their borders. During this period, around 300 Nai’xan asylum-seekers from Alanor also
reached Razzil’s borders on foot at midnight on April 18. However, they were turned back at
the borders, and told that the borders will be closed till further notice due to the Klobe Virus.
When they attempted to return to Wadia, through which they had entered Razzil, Wadian
border security also refused to take them. This left the asylum-seekers trapped and stranded at
the borders between the two countries without adequate shelter, food or water.
[THE ILLEGAL IMMIGRATION CONTROL BILL]

Meanwhile, on May 5, 2019, the Razzilian Government introduced a new bill in the Parliament
titled the Illegal Immigration Control Bill, 2019. Section 9 of the bill reinterpreted Article 31(1)
of the Refugee Convention in the sense that a refugee was not to be taken to come to Razzil
directly if they stopped in an intermediate country where they could have reasonably sought
protection. It considered the presence of such refugees as unlawful. Section 20 of the bill further
provided for penalising such unlawful refugees. Owing to these events, New Balanar, another
eastern country exercised its erga omnes obligations and brought an action against Razzil
before the Regional Ishkafel Court of Human Rights (“RICtHR”)
XVII
MEMORIAL ON BEHALF OF DEFENDANT [ISSUES RAISED]
ISSUES RAISED
-I-
WHETHER THE DETENTION OF ASYLUM SEEKERS BY RAZZIL VIOLATES PRINCIPLES OF
INTERNATIONAL LAW?
- II -
WHETHER RAZZIL’S CLOSURE OF BORDERS IN LIGHT OF PUBLIC HEALTH CRISIS VIOLATES THE
PRINCIPLE OF NON-REFOULEMENT?
- III -
WHETHER THE ILLEGAL IMMIGRATION CONTROL BILL, 2019 INTRODUCED BY RAZZIL
CONTRAVENES ARTICLE 31 OF THE REFUGEE CONVENTION AND RAZZIL’S OTHER OBLIGATIONS
UNDER INTERNATIONAL LAW?
- IV -
WHETHER THE COUNTRIES APART FROM RAZZIL IN THE ISHKAFEL UNION HAVE A DUTY TO
SHARE THE RESPONSIBILITY TO OFFER PROTECTION TO THE ASYLUM-SEEKERS AND ADDRESS
THE REFUGEE CRISIS?
XVIII
MEMORIAL ON BEHALF OF DEFENDANT [SUMMARY OF ARGUMENTS]
SUMMARY OF ARGUMENTS
-I-
The Defendant submits that the detention of asylum seekers does not violate principles
of international law because the same was authorised by domestic legislation and had adequate
safeguards including appeals and bail provisions to be exercised by the detainees. Further, the
human rights of the Nai’xan asylum seekers are not absolute and can be curtailed in the interests
of national security.
Additionally, it is also submitted that the right to asylum is more of right of the
sovereign state and not an exclusive right of the individual. The State, therefore, can exercise
its discretion in exercising such a right.
- II -
It is submitted that closure of borders by Razzil, in the light of sudden change in

circumstances which endanger the health of its own people is not in violation of the non-
refoulement principle. This is because there are certain exceptions to the principle of non-
refoulement and the present situation completely falls in the category of such an exception to
the principle of non-refoulement. Further, refoulement on the basis of national security does
not fall in the category of inhuman treatment and the same is supported by various international
conventions and customary international law.
Additionally, human rights can be curtailed in the light of public health emergencies.
The present case, hence, completely fits in that category implying that Razzil’s decision to
close its borders is neither in violation of the Refugee Convention nor inconsistent with its
obligations under international law.
- III -
It is humbly submitted by the Defendant that Razzil’s Illegal Immigration Control Bill,
2019 is not in violation of Article 31 of the Refugee Convention and Razzil’s obligations under
international law because both Section 9 and Section 20 of the said bill are consistent
XIX
MEMORIAL ON BEHALF OF DEFENDANT [SUMMARY OF ARGUMENTS]
with Razzil’s obligations under internal law and the refugee Convention. Section 9 penalises
only those persons who could have reasonably sought protection in the country where they
stopped. It nowhere talks about penalising genuine refugees coming from a country of
persecution.
Additionally, Section 20 is based on the well-established principle of sovereignty of the

state and merely endorses the legitimate aim of protecting its own citizens in light of the sudden
change in circumstances that endanger its citizens health and life as well as the asylum seekers.
- IV -
It is humbly submitted that the countries apart from Razzil in the Ishkafel Union have
an obligation to share the burden of the Nai’xan asylum seekers coming to Razzil. The same is
because Britannia and Wadia were the first countries to assess the applications of the Nai’xans
and, the ‘rule of first country’ is to be followed according the Ishkafel Regulation.
Additionally, burden sharing and international cooperation are a part of international

obligations of the other states in the Ishkafel Union, thus, mandating them to welcome the
Nai’xan asylum seekers in their territory as well.
XX
MEMORIAL ON BEHALF OF DEFENDANT [ARGUMENTS ADVANCED]
ARGUMENTS ADVANCED
ISSUE I: THE DETENTION OF ASYLUM-SEEKERS BY RAZZIL DOES NOT

VIOLATE PRINCIPLES OF INTERNATIONAL LAW
The detention of asylum-seekers by Razzil does not violate principles of international law
because, firstly, the same was authorised by law and had adequate procedural safeguards [A.],
secondly, human rights guaranteed under international law are not absolute [B.], and thirdly,
right to asylum is the right of the state and not an individual [C.].
A. RAZZIL HAS THE POWER TO DETAIN AND ALSO PROVIDES ADEQUATE SAFEGUARDS
TO THE ASYLUM SEEKERS
Razzil has conformed to its international obligations, firstly, by having clear and precise
domestic legislations for the purposes of detention [1.] and, secondly, by providing adequate
safeguards to the asylum seekers [2.].
1. POWER TO DETAIN FLOWS FROM DOMESTIC LEGISLATION
Detention laws must conform to the principle of legal certainty. This requires that the law and
its legal consequences are foreseeable and predictable.3 Any deprivation of liberty that is not
in conformity with national law shall be unlawful with regards to international law.4
However, in the present case, Razzil had the power to detain asylum seekers. The detention
laws are precise and accessible to public at large. The Home Secretary has the power to detain
for a limited period foreign national seeking to enter the Razzil.5 Schedule 2 of the Immigration
Act, states that person who may be required to submit to examination may be detained under
the authority of an immigration officer pending his examination and pending a decision to give
or refuse him leave to enter6. Asylum and Immigration Appeals Act also contains provisions
for detention of asylum seekers.7
3
Bozano v France App No 9990/82 (ECtHR, 18 December 1986) [54]; HL v United Kingdom App No 45508/99
(ECtHR, 5 October 2004) [114].
4
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March
1976) 999 UNTS 171 (hereinafter, ‘ICCPR’) art 9(1).
5
Immigration Act 1971, schedule 2, para 16(1) A.
6
ibid.
7
Asylum and Immigration Appeals Act 1999, s 140.
1
In R v. Secretary of State for the Home Department, it was held that in the absence of any limit,
detention for a significant number of years was not unlawful.8 Further, in Oakington case,9 it
was held the government’s policy of detention pursued for administrative convinience was
justified under the terms of Article 5(1)(f) of ECHR. The said provision states that deprivation
of liberty is justified when the lawful arrest or detention of a person is prescribed by law.10
Hence, in the present instance, the detention was prescribed by domestic legislation which is
an obligation under the International Law.
2. THERE ARE ADEQUATE SAFEGUARDS
The asylum seekers in the present case have adequate safeguards to make human rights claims.
The right to judicial recourse is an adequate safeguard.11 The same is guaranteed by way of
appeals, provisions for bail and other protection measures that can be claimed by the asylum
seekers in Razzil. The right to appeal in itself is also an adequate safeguard.12
Part 5 of the Nationality, Immigration and Asylum Act talks about the right to appeal before a
tribunal when human rights are violated. 13 The asylum seekers are free to appeal in the First-
tier tribunal, and if they do not get a favourable outcome, they can challenge the said decision
in the Upper Tribunal.
Further, the Human Rights Act of Razzil contains various safeguards. Section 8 of the said act
has provisions for judicial remedies in relation to any act (or proposed act) of a public authority
which the court finds is (or would be) unlawful. The court may grant any relief or remedy, or
make orders, within its powers which it considers just and appropriate. 14 Section 4 of this act
further grants power to courts to declare any provision of law which violates a convention right
8
R (on the application of Muqtaar) v Secretary of State for the Home Department [2013] 1 WLR 649.
9
Secretary of State for the Home Department ex parte Saadi [2002] UKHL 41.
10
Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human
Rights, as amended) (hereinafter, ‘ECHR’) art 5(1)(f).
11
Klass v Germany App no 5029/71 (ECtHR, 6 September 1978) [56]; Uzun v Germany App no 35623/05
(ECtHR, 2 September 2010) [72].
12
HRC, Malcolm Ross v Canada Comm No 736/1997 UN Doc CCPR/C/70/D/736/1997 [11.4]–[11.5]; Klass v
Germany App no 5029/71 (ECtHR, 6 September 1978) [56]; International Commission of Jurists, ‘Judicial
Accountability — A Practitioner’s Guide’ (International Commission of Jurists, June 2016) <www.icj.org/wp-
content/uploads/2016/06/Universal-PG-13Judicial-Accountability-Publications-Reports-Practitioners-Guide-
2016-ENG.pdf> accessed 5 June 2022.
13
Nationality, Immigration and Asylum Act 2002, part 5.
14
Human Rights Act 1998, s 8.
2
as incompatible.15 Section 10 of the act substantiates the same as it has provisions for remedial
action when a provision is declared incompatible.16
Moreover, the Immigration Act 2016 has provisions for bail that may be granted to the asylum
seeker by the secretary of state.17 Not only this, Razzil has gone a step ahead and made
provisions for seeking protection and support for themselves and their dependents when they
become destitute or even have a risk of becoming destitute.18
Hence, Razzil has conformed with its international obligations by providing sufficient
safeguards to the asylum seekers present in its territory.
B. HUMAN RIGHTS OF NAI’XANS ARE NOT ABSOLUTE
Human rights guaranteed to the asylum seekers present in the territory of Razzil are not
absolute. States have the right to control the entry, residence and expulsion of aliens.19
Article 29 of the UDHR states that everyone shall be subjected to limitations that are
determined by law for the purpose of securing due recognition and respect for the rights and
freedoms of others and which meet the just requirements of morality, public order and the
general welfare in a democratic society.20 Further, Article 12 of ICCPR also permits restrictions
on human rights which are provided by law, are necessary to protect national security, public
order etc.21 Hence, human rights are not absolute and are subjected to restrictions on the ground
of public order and security considerations.22
In the present instance, there was a general sentiment of resentment among the Razzilians
against the ‘Easterners’,23 which has the potential to lead to the disruption of peace in Razzil.
There also have been protests against the inclusion of ‘easterners’ in Razzil before.24 Thus, all
the reasonable concerns are present ion the instant case for the government to be more vigilant,
15
ibid, s 4.
16
ibid, s 10.
17
Immigration Act 2016, schedule 10.
18
Asylum and Immigration Appeals Act 1999, s 95(1).
19
Riad and Idiab v Belgium App No 29787/03 and 29810/03 (ECtHR, 24 January 2008) [107].
20
Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (hereinafter,
‘UDHR’), art 29.
21
ICCPR, art 12.
22
Vincent Chetail, ‘Are Refugee Rights Human Rights? An Unorthodox Questioning of the Relations between
Refugee Law and Human Rights Law’
<https://oxford.universitypressscholarship.com/view/10.1093/acprof:oso/9780198701170.001.0001/acprof-
9780198701170-chapter-2> (Oxford Scholarship Online) accessed 7 June 2022.
23
Moot Proposition [30].
24
3
especially when a mass exodus of Nai’xans is seeking shelter in the country. As a norm, the
first priority of the UN charter is also peace and then comes human rights.25
Thus, restrictions on Nai’xans would be reasonable and can be attributed as a precautionary

measure.
Further, it must be noted that minimal periods in detention may be permissible to carry out
initial identity and security checks in cases where identity is undetermined or in dispute, or
there are indications of security risks.26 And in the present case, the Razzilian government is
indeed conducting security checks. The Counter-terrorism Intelligence Wing of Razzil is
investigating the potential links between the Nai’xan asylum seekers and terrorist groups in the
east, especially those located in Rexxar.27 Hence, the restrictions imposed on asylum seekers
are valid considering the maintenance of public order and national security.
C. RIGHT OF ASYLUM IS A RIGHT OF A STATE, RATHER THAN RIGHT OF AN

INDIVIDUAL
Under international law, asylum has traditionally been regarded as a state’s right rather than an
individual’s right. Every sovereign state is presumed to have exclusive jurisdiction over its
territory and, as a result, over the people present there.28 One of the ramifications of this widely
accepted rule is that any sovereign state has the authority to grant or deny asylum to people
who are physically present within its borders.29 Admission of aliens into a state's territory has
historically been treated as a matter of state sovereignty.30
Article 14(1) of the UDHR proclaims the right of an individual “to seek and to enjoy in other
countries asylum from persecution.”31 However, scholars agree that this clause only gives a
person the right to seek asylum, not the right to receive it.32 As a result, the Declaration did not
add to the existing international law about an individual's right to seek asylum in a particular
country. Further, other treaties and conventions like ICCPR and the 1951 Refugee Convention
25
UDHR, preamble [2].
26
UNHCR ExCom, Conclusion on Detention of Refugees and Asylum-Seekers, para (b).
27
28
Felice Morgenstern, ‘The Right of Asylum’ (1949) 26 BYB Intl Law 327.
29
S Prakash Sinha, ‘An Anthropocentric View of Asylum in International Law’ (1971) 10 CJTL 78.
30
James Crawford, Brownlie ‘s Principles of Public International Law (8th ed, Oxford University Press); Atle
Grahl-Madsen, The Status of Refugees in International Law (2nd ed Chatham House 1972).
31
UDHR, art 14(1).
32
Ian Martin, Foreword to Daniele Joly et al, Refugees: Asylum in Europe? (Minority Rights Publications
1992).
4
and its 1967 Protocol relating to the Status of Refugees, also do not provide a right to be granted
asylum.33
Thus, it is established that states are under no international legal obligation to mandatorily
accept refugees who seek asylum at their borders.34 Hence, in the present case, Razzil can
detain the asylum seekers as it is under no international obligation to grant asylum to the fleeing
Nai’xans.
ISSUE II: RAZZIL’S CLOSURE OF BORDERS IN LIGHT OF A PUBLIC HEALTH CRISIS DOES
NOT VIOLATE THE PRINCIPLE OF NON-REFOULEMENT
Closure of borders by Razzil in the circumstances of Public Health Emergency does not violate
the principle of non-refoulement as there are certain exceptions for non-refoulement [A.],
Refoulement on the basis of national security does not amount to inhuman treatment [B.],
Rights to be curtailed during public health emergencies [C.].
A. EXCEPTIONS FOR NON-REFOULEMENT
There are exceptions to the rule of Non-Refoulement under Article 33(2) of the Refugee
Convention35 [1.] and there is an obligation of a state to protect their citizens [2.].
1. ARTICLE 33(2) OF THE CONVENTION
While the principle of non-refoulement is basic in character, it is recognized that there may be
certain cases in which an exception to the principle can legitimately be made.36 Thus Article
33(2) of the 1951 Refugee Convention provides that the benefit of Article 33(1) may not
however be claimed by a refugee whom there are reasonable grounds for regarding as a danger
to the security of the country in which he is, or who, having been convicted by a final judgement
of a particularly serious crime, constitutes a danger to the community of that country.” This
was also stated by the United States’ Supreme Court in G v. G.37
33
David A Martin, ‘Reforming Asylum Adjudication: On Navigating the Coast of Bohemia’ (1990) 138
University of Pennsylvania Law Review 1247; Christian Tomuschat, ‘A Right to Asylum in Europe’ 13 (1992)
HRLJ 257, 258.
34
HRC, Buffo Carballal v Uruguay Comm No 33/1978, UN Doc A/36/40 [125].
35
Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189
UNTS 137 (hereinafter, ‘Refugee Convention’), art 33(1).
36
Office of High Comiisioner, ‘Note on Non-Refoulement’ UN High Commissioner for Refugees (UNHCR, 23
August 1977) <www.refworld.org/docid/3ae68ccd10.html> accessed 10 June 2022.
37
G v G [2021] UKSC 9.
5
Such exception is based on factors relating to the person concerned who does not figure in the
other instruments either universal or regional. Provision is, however, made for certain other
general exceptions, i.e., "over-riding considerations of national security or in order to safeguard
the national security or protect population," 38"in order to safeguard national security or protect
the community from serious danger".39
In view of the serious consequences to a refugee of being returned to a country where he is in

danger of persecution, the exception provided for in Article 33(2) should be applied with the
greatest caution.
The application of this provision requires an individualized determination by the country 40in
which the refugee is that he or she comes within one of the two categories provided for under
Article 33(2) of the 1951 Convention.41
With regard to the 'national security' exception (that is, having reasonable grounds for regarding
the person as a danger to the security of the country), while the evaluation of the danger remains
within the province of the national authorities, the term clearly implies a threat of a different
kind than a threat to 'public order' or even to 'the community'. In 1977, the European Court of
Justice ruled that there must be a genuine and sufficiently serious threat to the requirements of
public policy affecting one of the fundamental interests of society42. It follows from state
practice and the Convention travaux preparations 43
The provisions of Article 33(2) of the 1951 Convention do not affect the host State’s non-
refoulement obligations under international human rights law, which permit no exceptions.
Thus, the host State is barred from removing a refugee only if it would result in exposing him
38
UNGA, ‘Declaration on Territorial Asylum’ A/RES/2312(XXII) art 3(2); Asian-African Legal Consultative
Committee, ‘Principles relating to the Treatment of Refugees’ (8th Session) art III (2).
39
Council of Europe, ‘Resolution on Asylum to Persons in Danger of Persecution’ (29 September 1967)
Resolution 67.
40
Richard Stainsby ‘UNHCR And Individual Refugee Status Determination’ (Forced Migration Review)
<www.fmreview.org/statelessness/stainsby> accessed 22 May 2022.
41
UNHCR, ‘Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention
and the 1967 Protocol relating to the Status of Refugees’ HCR/IP/4/Eng/REV.1 (January 1992).
42
Reg v Bouchereau 2 CMLR 800.
43
United Nations, ‘What are Travaux Préparatoires and How Can I Find Them?’ (18 March 2022)
<https://ask.un.org/faq/14541> accessed 10 June 2022.
6
or her, for example, to a substantial risk of torture.44 Similar considerations apply with regard
to the prohibition of refoulement to other forms of irreparable harm.45 In the current case,
Razzil is not exposing refugees to any substantial risk or torture46, as they are not handing
them over back to their origin country.
With regard to the interpretation of the 'particularly serious crime'-exception, two basic
elements must be kept in mind. First, as Article 33 (2) is an exception to a principle, it is to be
interpreted and implemented in a restrictive manner, as confirmed by Executive Committee
Conclusion No 747 where they recommended that, in line with Article 32 of the 1951
Convention, expulsion measures against a refugee should only be taken in very exceptional
cases and after due consideration of all the circumstances, including the possibility for the
refugee to be admitted to a country other than his country of origin.
Second, given the seriousness of an expulsion for the refugee, such a decision should involve
a careful examination of the question of proportionality between the danger to the security of
the community or the gravity of the crime, and the persecution feared. 48
As mentioned in the Article 33 of the Refugee Convention49, state that no Contracting State
shall expel or return a refugee in any manner whatsoever to the frontiers of territories where
his life or freedom would be threatened. In the present case also, the migrants were not being
re-sent or deported to their origin country by Razzil or to any other territory where they had a
chance of facing persecution. Hence, the essential of principle of non-refoulement has not been
violated by Razzil in the current case.
2. OBLIGATIONS OF STATES TO PROTECT ITS CITIZENS
Article 2 of the Declaration of State, 194950 states that every State has the right to exercise
jurisdiction over its territory and over all persons and things therein, subject to the immunities
44
UNHCR, ‘Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the
1951 Convention relating to the Status of Refugees and its 1967 Protocol’ (26 January 2007)
<www.refworld.org/docid/45f17a1a4.html> accessed 9 June 2022.
45
Office of Human Rights Commissioner HRC, The Principle of Non-Refoulement (United Nations Human
Rights Commissioner, 2020),
<www.ohchr.org/sites/default/files/Documents/Issues/Migration/GlobalCompactMigration/ThePrincipleNon-
RefoulementUnderInternationalHumanRightsLaw.pdf> accessed 11 June 2022.
46
Moot Proposition.
47
Office of the United Nations High Commissioner for Refugees Division of International Protection Services,
‘Conclusions Adopted by The Executive Committee on The International Protection of Refugees’ (December
2009) <https://www.unhcr.org/en-my/578371524.pdf> accessed 11 June 2022.
48
S Irudaya Rajan, The Routledge Handbook of Refugees in India (Routledge India, 1st ed).
49
Refugee Convention, art 33.
50
UN ‘Declaration of State’ (1949) art 2.
7
recognized by international law. Furthermore, article 7 states that Every State has the duty to
ensure that conditions prevailing in its territory do not menace international peace and order. 51
In the present case, the state of Razzil was bound to uphold the peace and order of their own
state, considering that flocking of numerous asylum seekers52 have a decent potential to
transmit the novel virus, for which vaccine and immunization is still not available.53
Right to health is one of the basic human rights 54 prescribed to citizens of any state55. Opening
the gates to an unknown number of people can be devastating 56for the subject of states that are
currently living in the boundaries. Moreover, due to lack of resources, the state would have
been incapable of helping migrants57 breed properly, hence adding to their misery. Therefore,
what Razzil did was its obligation towards its citizens and not as a violation of any rights of
the asylum seekers.
B. REFOULEMENT ON THE BASIS OF NATIONAL SECURITY DOES NOT AMOUNT TO INHUMAN

TREATMENT
Refoulement on the basis of National Security does not amount to Inhuman Treatment as,
firstly, it is supported by the Conventional and International Law Guidelines [1.] and secondly,
Migrants took Refuge in neighbouring countries for a longer period of time, exempting Razzil
from obligations [2.].
1. SUPPORTED BY THE CONVENTIONAL AND INTERNATIONAL LAW
Article 33(2) of the Refugee Convention states that the benefits of the first paragraph cannot
be claimed by a refugee if there are reasonable grounds to regard him as a danger to the security
of the country in which he is, or if he has been convicted of a particularly serious crime and
therefore constitutes a danger to the community of the country he is in. It is clear that through
the breakout of a novel virus, where WHO has recommended the provisional social
51
UN, ‘Declaration of State’ (1949) art 7.
52
53
54
UN Committee on Economic, Social and Cultural Rights ‘General Comment 14’ in The Right to the Highest
Attainable Standard of Health (2000) UN Doc E/C.12/2000/4.
55
UDHR, art 25.
56
Government of India, ‘Guidelines for Quarantine facilities COVID-19’
<https://www.mohfw.gov.in/pdf/90542653311584546120quartineguidelines.pdf> accessed 12 May 2022.
57
World Health Organisation, Migration and Health (United Nations, 2020) <www.who.int/europe/news-
room/fact-sheets/item/migration-and-health-key-issues> accessed 17 May 2022.
8
distancing58, anyone coming from beyond border can be termed as a carrier of virus59, i.e.,
threat to the security, health and order of the community living in the particular area.
States bear primary responsibility for national security and the safety of their citizens, including
in the ICT environment60. Furthermore, international law, and in particular the Charter of the
United Nations61, is applicable and is essential to maintaining peace and stability and
promoting an open, secure, stable, accessible and peaceful ICT environment.
As per the report from the Office of Commission of Human Rights titled Emergency Measures
and Covid-19: Guidance62 Some rights, such as freedom of movement, freedom of expression
or freedom of peaceful assembly may be subject to restrictions for public health reasons 63.
Article 11(2) of ECHR states that no restrictions shall be placed on the exercise of these rights
other than such as are prescribed by law and are necessary in a democratic society in the
interests of national security or public safety, for the prevention of disorder or crime, for the
protection of health or morals or for the protection of the rights and freedoms of others. 64 This
Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by
members of the armed forces, of the police or of the administration of the State.
Article 15 of ECHR states that during war or other public emergency threatening the life of the
nation any High Contracting Party may take measures derogating from its obligations under
this Convention to the extent strictly required by the exigencies of the situation, provided that
such measures are not inconsistent with its other obligations under international law. 65
58
World Health Organisation, ‘Statement on The Second Meeting of the International Health Regulations
Emergency Committee Regarding the Outbreak of Novel Coronavirus (2019-Ncov)’ (2005)
<www.who.int/news/item/30-01-2020-statement-on-the-second-meeting-of-the-international-health-regulations-
(2005)-emergency-committee-regarding-the-outbreak-of-novel-coronavirus-(2019-ncov)> accessed 8 May 2022.
59
NCBI, ‘Understanding Emerging and Re-emerging Infectious Diseases’ (2007)
<www.ncbi.nlm.nih.gov/books/NBK20370/> accessed 18 May 2022.
60
UN Group of Governmental Experts, ‘Report of the Group of Governmental Experts on Developments in the
Field of Information and Telecommunications in the Context of International Security’ (22 July 2015) A/70/174.
61
UN Charter (enacted 26 June 1945, entered into force 24 October 1945) A/RES/95 (hereinafter, ‘UN
Charter’).
62
Office of Commission of Human Rights, ‘Emergency Measures and Covid-19: Guidance’ (UNHCR)
<www.ohchr.org/en/covid-19/covid-19-guidance> accessed 22 May 2022.
63
Office of Commission of Human Rights, ‘Emergency Measures and Covid-19: Guidance’ (UNHCR, 27 April
2020) <www.ohchr.org/sites/default/files/Documents/Events/EmergencyMeasures_COVID19.pdf> accessed 11
June 2022.
64
European Union, ‘Charter of Fundamental Rights of the European Union’ (enforced 26 October 2012) 2012/C
326/02 (hereinafter, ‘European Charter on Human Rights’) art 11.
65
European Charter on Human Rights, art 15.
9
States have a clear human rights obligation to protect primarily their citizens -possibly even
beyond their jurisdiction- from threats to the right to life and health and thus take emergency
health measures to control the widespread of a health pandemic.66
2. MIGRANTS TOOK REFUGE IN NEIGHBOURING COUNTRIES FOR A LONGER PERIOD OF TIME,

EXEMPTING RAZZIL FROM OBLIGATIONS
In its case on Article 4 of Protocol No 467 on summary returns and related scenarios, the ECHR
has distinguished a number of factual situations and the relevant tests to be applied. In N.D.
and N.T. v. Spain68, the Court set out a two-tier test to determine compliance with Article 4 of
Protocol No. 4 in cases where individuals cross a land border in an unauthorised manner69 and
are expelled summarily, a test which has been applied in all later cases 70 presenting precisely
the same scenario. Firstly, it has to be taken into account whether the State provided genuine
and effective access to means of legal entry, in particular border procedures, to allow all
persons who face persecution to submit an application for protection.71
Secondly, where the State provided such access but an applicant did not make use of it, it has
to be considered whether there were cogent reasons for not doing so which were based on
objective facts for which the State was responsible. The absence of such cogent reasons could
lead to this being regarded as the consequence of the applicants’ own conduct, justifying the
lack of individual identification.72
According to the WIAR,73 Razzil in the first case was not obligated to process their asylum
applications. The Nai’xans claiming to be asylum-seekers entered Razzil only after passing
through the transit countries of Britannia and Wadia74 and after staying there for long periods
of time. Therefore, following the jurisprudence of the case and considering the circumstances,
Razzil had no obligation towards the Nai’xan asylum seekers.
66
World Health Organisation and Office of Commission of Human Rights, ‘Factsheet No 31: Right to Health’
(1 June 2008) <www.ohchr.org/en/publications/fact-sheets/fact-sheet-no-31-right-health> accessed 19 May
2022.
67
ECHR, protocol 4, art 4.
68
ND and NT v Spain App No 8675/15 and 8697/15 (ECtHR, 13 February 2020) [201; 209-211].
69
ECHR, ‘Guide on Article 4 of Protocol No 4 of European Court of Human Rights’
<www.echr.coe.int/Documents/Guide_Art_4_Protocol_4_ENG.pdf> accessed 13 June 2022.
70
Shahzad v Hungary App No 12625/17 (ECtHR, 8 July 2021) [59]; MH and Others v Croatia App
No 15670/18 and 43115/18 (ECtHR, 18 November 2021) [294].
71
ECHR, ‘Guide on the case-law of the European Convention on Human Rights, Immigration’
<www.echr.coe.int/Documents/Guide_Immigration_ENG.pdf>accessed 11 May 2022.
72
ECHR, ‘Practical Guide on Admissibility Criteria’
<www.echr.coe.int/documents/admissibility_guide_eng.pdf> accessed 11 May 2022.
73
74
10
C. RIGHTS TO BE CURTAILED DURING PUBLIC HEALTH EMERGENCIES.
There are some rights that are legally curtailed in times of Public Health Emergency by
contending firstly Curtailing of Rights done in accordance with the International Law
Conventions [1.] and secondly Curtailing of such rights does not amount to human rights
violations [2.].
1. CURTAILING OF RIGHTS DONE IN ACCORDANCE WITH THE INTERNATIONAL LAW

CONVENTIONS
In extreme circumstances, in time of public emergency which threatens the life of the nation
States may take measures to derogate from the Covenant, i.e., to temporarily suspend or adjust
their obligations under the treaty, provided a number of conditions are met.75 The importance
of adhering to these criteria has been emphasized by the United Nations General Assembly.76
The Inter-American Court of Human Right (IACtHR) has also stated that the starting point for
any legally sound analysis and the function it performs is the fact that it has a provision for
exceptional situations. 77 It applies "in time of war, public danger, or other emergency that
threatens the independence or security of a State Party" as stated in Durand and Ugarte case.78
Here, the Court while dealing with a Habeas corpus case in emergency situations stated that
the American Convention "permits the suspension of certain rights and freedoms only 'to the
extent and for the period of time strictly required by the exigencies of the situation”.79
Similarly, in articulating the threshold to be crossed, ECtHR has determined that three
conditions are necessary: there must exist an exceptional situation of crisis or emergency;
which affects the whole population; and which constitutes a threat to the organized life of the
community. As with the approach of the Inter- American Court, the ECtHR permits States
some discretion - a “margin of appreciation” in their assessment of perceived security threats
and responses to them80.
75
ICCPR, art 4.
76
UNGA Res 60/1 (16 September 2005) UN Doc A/RES/60/1.
77
Organization of American States, ‘American Convention on Human Rights, "Pact of San Jose", Costa Rica’
(enacted 22 November 1969, entered into force 18 July 1978) (hereinafter, ‘Inter-American Convention on
Human Rights’) art 27.
78
Durand and Ugarte v Peru IACHR Series C no 68 (2000) [9].
79
UNODC, ‘Derogation in Times of Public Emergency’ (July 2018) <www.unodc.org/e4j/en/terrorism/module-
7/key-issues/derogation-during-public-emergency.html> accessed 12 June 2022.
80
A and others v the United Kingdom App no 3455/05 (ECtHR, 19 February 2009) [171-173].
11
Both Courts require that a formal state of emergency be declared before any suspension of
rights is made.81 States must also report which rights have been suspended as a result of this
declaration. 82 Therefore, the rights can be curtailed in such sitiuations.
2. CURTAILING OF SUCH RIGHTS DOES NOT AMOUNT TO HUMAN RIGHTS VIOLATIONS.
Due to the risk of human rights abuses and rule of law violations occurring in emergency
situations, it is important that they are kept under regular review to ensure that the threshold
criteria are still met. The Siracusa Principles envisage that the national constitution and laws
governing states of emergency shall provide for prompt and periodic independent review by
the legislature of the necessity for derogation measures. Similarly, the importance of such
ongoing review has been reiterated by the Council of Europe Parliamentary Assembly
Committee on Legal Affairs and Human Rights in its State of emergency that the judicial
supervision of derogations is necessary to preserve the rule of law, protect non-derogable rights
and prevent arbitrariness.83
Article 38(1)(b) of the Statute of the International Court of Justice lists “international custom,
as evidence of a general practice accepted as law”, as one of the sources of law which it applies
when deciding disputes in accordance with international law. 84
Customary international law is comprised of two elements: (1) consistent and general
international practice by states, and (2) a subjective acceptance of the practice as law by the
international community (opinio juris). 85 Countries like Cuba, United States, United Kingdom
and India also closed their borders due to health emergencies by citing reasons of public health
emergency while upholding the right to health of their own citizens, making it a distinguished
state practice. Therefore, the curtailment of the rights of the Nai’xans to seek asylum cannot be
termed as human rights violations as it was done during a public health emergency and in view
of the health of its the citizens.
81
Lawless v Ireland (No 3) App no 332/57 (ECtHR, 1 July 1961) [28].
82
Zambrano Velez v Ecuador IACHR Series C no 166 [45-47].
83
OHCHR, ‘Chapter 16: The Administration of Justice During State Emergency’
<www.ohchr.org/sites/default/files/Documents/Publications/training9chapter16en.pdf > accessed 10 June 2022.
84
Statute of International Court of Justice, art 38(1)(b).
85
UN, Draft Conclusions on Identification Of Customary International Law, With Commentaries’ (2018)
<https://legal.un.org/ilc/texts/instruments/english/commentaries/1_13_2018.pdf> accessed 18 May 2022.
12
ISSUE III: THE ILLEGAL IMMIGRATION CONTROL BILL, 2019 DOES NOT
CONTRAVENE ARTICLE 31 OF THE REFUGEE CONVENTION AND RAZZIL’S
OTHER OBLIGATIONS UNDER INTERNATIONAL LAW
The Illegal Immigration Control Bill, 2019 does not contravene Article 31 of the Refugee
Convention and Razzil’s obligations under international law as Section 9 [A.] and Section 20
[B.] of the Bill are in consonance with the Refugee convention and Razzil’s obligations under
international law.
A. SECTION 9 OF THE ILLEGAL IMMIGRATION CONTROL BILL, 2019 DOES NOT

CONTRAVENE ARTICLE 31 OF THE REFUGEE CONVENTION AND RAZZIL’S OTHER
OBLIGATIONS UNDER INTERNATIONAL LAW
Section 9 of the Illegal Immigration Control Bill, 2019 does not contravene Article 3186 of the
Refugee Convention and Razzil’s other obligations under international law as the interpretation
done under the section is compatible with Article 31(1).
There is no specific provision within the Refugee Convention which defines a certain term or
sets out a specific procedure, and it is open to states to interpret the terms of the Refugee
Convention. The responsibility of States party to the 1951 Convention and 1967 Protocol to
treat asylum seekers in accordance with Article 31(1) can be engaged by an act of the State,
i.e., by asserting jurisdiction over the individual with a view to enforce immigration-related
measures of control, or institute immigration-related criminal proceedings.
This simply means that the choice of means in implementing most of the provisions is left to
the States themselves so as to they may select legislative incorporation, administrative
regulation, informal and ad hoc procedures, or a combination thereof. The only limitation that
is placed on that autonomy to interpret is by way of the principles of treaty interpretation under
Article 31 and 32 of the Vienna Convention on the Law of Treaties further which reflects
customary rules.87
The overarching principle laid under Article 31 VCLT is that a treaty has to be interpreted in
good faith.88 The centrality of Article 31 to the purposes and scheme of the 1951 Refugee.
86
Refugee Convention, art 31.
87
Vienna Convention on the Law of Treaties (United Nations) 1155 UNTS 331 (hereinafter, ‘VCLT’) art 32.
88
VCLT, art 31(1); Malgosia Fitzmaurice, ‘The Practical Working of the Law of Treaties’ in Malcolm D Evans
(ed), International Law (4th edn, OUP 2014) 166, 179; Olivier Corten and Pierre Klein, The Vienna
Conventions on the Law of Treaties: A Commentary (OUP 2011) 807.
13
Convention has to be borne in mind.89 Article 31(2) VCLT defines the ‘context’ of the treaty
which includes a treaty’s preamble and annexes, as well as any instruments relevant to the
conclusion of a treaty.90 Article 32 of the VCLT further covers the use of supplementary means
of interpretation i.e., the preparatory work related to the convention. 91
Article 31(1) of the Refugee Convention only talks about providing immunity to people
“coming directly” from a country of persecution and not to those people who have or easily
could have sought protection in the any other country. It is on record that the drafters of the
Refugee Convention clearly intended that immunity from penalty should not apply to refugees
who had settled, temporarily or permanently, in another country.92
During the 1951 Conference as well, it was suggested by the French Delegate that if a refugee
who had settled temporarily in a receiving country was also free to enter another country, then
this would grant him a right of immigration which might be exercised by him for mere personal
convenience.”93 Goodwin-Gill94 also observed that the drafting history of Article 31(1) clearly
incorporated only references to refugees ‘coming directly from a territory where their life or
freedom was threatened’. Similar practices that have emerged around safe third country and
related concepts.95
Therefore, we can infer that the immunity from penalties was only extended to persons fleeing
directly from the country of persecution and not to those who stopped in a safe third country in
between. The section also deals on the same lines and penalises only those persons who could
have reasonably sought protection96 in the country where they stopped. It nowhere talks about
penalising genuine refugees coming from a country of persecution.
Moreover, the section provides refugees with an opportunity to make a claim for asylum when
it is practicable and possible for them and not before that. It is a reasonable assumption that
89
UNHCR, ‘Article 31 of the 1951 Convention Relating to the Status of Refugees’ (July 2017) PPLA/ 2017/01.
90
ibid.
91
VCLT, art 32.
92
UNHCR, ‘Summary Conclusions on Article 31 of the 1951 Convention Relating to the Status of Refugees’ (9
November 2001) <www.unhcr.org/419c783f4.pdf> accessed 19 May 2022 [10(c)].
93
M Colemar, ‘Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, Summary
Records’, UN doc A/CONF.2/SR.14.
94
Guy S Goodwin-Gill, The Refugee in International Law (Oxford University Press, 1996).
95
EXCOM Conclusion No 15 (XXX) ‘Refugees Without an Asylum Country’ (1979); EXCOM Conclusion No
58 (XL) ‘The Problem of Refugees and Asylum-Seekers Who Move in An Irregular Manner from A Country in
Which They Had Already Found Protection’ (1989).
96
14
any genuine refugee fleeing from a country of persecution will apply for an asylum as soon as
he becomes aware of the legal requirements. Though the Convention does not explicitly define
what is meant by ‘coming directly’ or ‘without delay’97, but if we take into account the
discussions of the Ad Hoc Committee and the intentions of the drafters as mentioned and
interpret the Convention in a good faith, we can clearly infer that the section is in conformity
with Article 31 of the Refugee Convention.
B. SECTION 20 OF THE ILLEGAL IMMIGRATION CONTROL BILL, 2019 DOES NOT

CONTRAVENE ARTICLE 31 OF THE REFUGEE CONVENTION AND RAZZIL’S OTHER
OBLIGATIONS UNDER INTERNATIONAL LAW
Section 20 of the Illegal Immigration control Bill 2019 does not contravene Article 31 of the
Refugee Convention because firstly, it is based on the well-established principle of sovereignty
[1.], and secondly, it advances the legitimate aim of protecting the lives of Razzil’s citizens as
well as asylum seekers [2.].
1. IT IS BASED ON THE WELL- ESTABLISHED PRINCIPLE OF SOVEREIGNTY
State Sovereignty is a well-recognised international principle. States have the power to

determine the admission of non-nationals into their country, detention of migrants and removal
or expulsion of non-nationals.98 This concept flows from the principle that every sovereign
state is deemed to have exclusive control over its territory and hence over persons present in
its territory.99 The 1951 Convention also explicitly acknowledges that States retain the power
to limit the freedom of movement of refugees, in the interests of national security, or if
necessary, after illegal entry.100
The UN Global Compact for Safe, Orderly and Regular Migration to which Razzil is a party
also reaffirms the sovereign right of States to determine their national migration policy and
their prerogative to govern migration within their jurisdiction.101 This means that within their
sovereign jurisdiction, states may distinguish between regular and irregular migration status as
97
Home Office, ‘Nationality and Borders Bill: A Differentiated Approach Factsheet’ (2 March 2022)
<www.gov.uk/government/publications/nationality-and-borders-bill-differentiation-factsheet/nationality-and-
borders-bill-differentiation-factsheet> accessed 4 June 2022.
98
ICCPR, art 40; UNHCR, ‘International Convention for Migrant Workers and Their Families’ Fact Sheet No
24 (Rev.1) art 16.
99
Felice Morgenstern, ‘The Right of Asylum’ (1949) BRrr YB INT Law 327, 327.
100
Guy S Goodwin Will, Article 31 of the 1951 Convention Relating to the Status of Refugees: Non-
Penalization, Detention, and Protection (Cambridge University of Press, 2003).
101
UNHCR, ‘Global Compact for Safe, Orderly and Regular Migration’ (enforced 19 December 2018)
A/RES/73/195.
15
they determine their legislative and policy measures, taking into account different national
realities, policies, priorities and requirements for entry, residence and work.
In its decision in Amuur v. France102, the European Court of Human Rights has also considered
the relevance of state sovereignty while dealing with an influx of refugees. The court here
acknowledged the difficulties involved in the reception of asylum seekers at most large
European airports and in the processing of their applications. In doing so, it further held that
the Contracting States have the undeniable sovereign right to control aliens’ entry into and
residence in their territory.
Furthermore, it has become an accepted practice to prosecute and punish refugees for illegal
entry. Except for three EU Member States, all the members punishes irregular entry with
sanctions in addition to the coercive measures that may be taken to ensure the removal of the
person from the territory of the state.103 Of these, seventeen member states104 such as Belgium,
Denmark, France, Germany etc. punishes illegal and irregular entry with imprisonment and
a fine while eight member states punish it with a fine only,105 although in aggravated
circumstances, they also have a provision for imprisonment as a punishment.
Section 9 of the bill also works on these lines and creates provisions to protect Razzil’s
international borders from unauthorised, illegal and potentially dangerous migrants. It does not
contravene any other international law and instead exercises these provisions which are in
accordance with European Convention of Human Rights106 by providing an opportunity of fair
trial to the accused and punishing him only after his conviction.107 Hence, the act of penalising
illegal immigrants only advances Razzil’s right to sovereignty which is a well established
international legal principle.
2. IT ADVANCES THE LEGITIMATE AIM OF PROTECTING THE LIVES OF RAZZIL’S CITIZENS AS

WELL AS THE ASYLUM SEEKERS
102
Amuur v France App No 17/1995/523/609 (ECtHR, 25 June 1996) [533].
103
European Union Agency for Fundamental Rights, ‘Criminalisation of Migrants in An Irregular Situation and
Of Persons Engaging with Them’ (2014) <https://fra.europa.eu/sites/default/files/fra-2014-criminalisation-of-
migrants_en.pdf> accessed 12 June 2022.
104
European Union Agency for Fundamental Rights, ‘Annex: EU Member States’ Legislation on Irregular Entry
and Stay, As Well As Facilitation of Irregular Entry and Stay’ (2014)
<https://fra.europa.eu/sites/default/files/fra-2014-criminalisation-of-migrants-annex_en.pdf> accessed 12 May
2022.
105
ibid.
106
ECHR, art 13.
107
16
Article 2 of ECHR positively requires the State to adopt laws and practices to safeguard the
right to life. 108 This extends to a positive obligation on States to have an adequate legislative
and administrative framework so as to avoid a real and immediate risk to life of which they
have, or ought to have, knowledge. The obligations under Article 2 ECHR are further mirrored
by obligations under ICCPR109 which provides for States parties to adopt any appropriate laws
or other measures in order to protect life from all reasonably foreseeable threats.
Recent reports have shown a huge rise in incidents of unauthorised Channel crossings in boat
or ferries which underline the worsening problem of illegal entry.110 It has emerged as
the “most common method of entry for asylum seekers”.111 Illegal entry risks safety and
consequently puts unwarranted pressure on the communities and services while causing
injustice to law-abiding citizens, legal migrants and true refugees. It further creates
serious problems which subsequently afflicts the whole asylum system.112 Most of these
asylum seekers come via unauthorised routes and claim asylum113, which in turn cause a
potential risk to their lives as well as a threat to the general safety.
Therefore, the fulfilment of this obligation of right to life under ECHR becomes of more
relevance in case of Razzil. The bill also seeks to achieve the same. The measures as laid down
in Section 20 of the Immigration Control Bill114 will ensure that they claim in the first safe
country they reach and do not undertake dangerous journeys facilitated by smugglers to get to
the UK.115
108
ECHR, art 2.
109
ICCPR, art 6.
110
Independent Chief Inspector of Borders and Immigration, ‘An Inspection of The Home Office’s Response to
In-Country Clandestine Arrivals (‘Lorry Drops’) And to Irregular Migrants Arriving Via Small Boats’
(November 2020)
<https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/933953/An_i
nspection_of_the_Home_Office_s_response_to_incountry_clandestine_arrivals___lorry_drops___and_to_irreg
ular_migrants_arriving_via__small_boats_.pdf> accessed 17 May 2022.
111
ibid.
112
ICIBI, ‘An Inspection Of The Home Office’s Management Of Non-Detained Foreign National Offenders’,
<November 2017)
<https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/656584/An_i
nspection_of_non-detained_FNOs.pdf> accessed 19 May 2022.
113
ICIBI ‘A Short Notice Inspection Of The Home Office Response To Lorry Drops’ (July 2016)
<https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/540577/ICIB
I_inspection_of_lorry_drops_July_2016.pdf> accessed 25 May 2022.
114
115
Home Office, ‘New Plan for Immigration Policy Statement’ (24 March 2021)
<www.gov.uk/government/consultations/new-plan-for-immigration> accessed 17 May 2022.
17
This will promote the integrity of Razzil’s international borders and will have a deterrent effect
on the illegal entry of these asylum seekers so that these individuals do not attempt risky and
dangerous journeys.116 This will also break the business model of people smuggling networks.
Hence the bill will fulfil the aim of protecting the lives of these asylum seekers as well as of
those they endanger.
ISSUE IV: THE COUNTRIES APART FROM RAZZIL IN THE ISHKAFEL

UNION HAVE A DUTY TO SHARE THE RESPONSIBILITY TO OFFER
PROTECTION TO THE ASYLUM-SEEKERS AND ADDRESS THE REFUGEE
CRISIS
The countries apart from Razzil in the Ishkafel Union have a duty to share the responsibility to
offer protection to the asylum seekers and address the refugee crises because, firstly, Britannia
and Wadia were the first countries to assess applications for international protection [A.] and
secondly, burden sharing and co-operation is a part of international obligations [B.].
A. BRITANNIA AND WADIA WERE THE FIRST COUNTRIES TO ASSESS APPLICATIONS FOR
INTERNATIONAL PROTECTION
The ‘first country of entry’ rule is the main criterion used by Member States’ authorities.117
Where no Member State responsible can be designated on the basis of the criteria listed in this
Regulation, the first Member State in which the application for international protection was
lodged shall be responsible for examining it.118 The Member State responsible shall be
determined on the basis of where the applicant first lodged his or her application for
international protection with a Member State.119 The country of first entry rule implies that the
allocation of responsibilities is governed by geography.120
116
ibid.
117
Elspeth Guild, ‘The Europeanisation of Europe’s Asylum Policy’ 18 International Journal for Refugee (2006)
l 630, 637.
118
Dublin Regulation III, art 3(2).
119
Dublin Regulation III, art 7(2).
120
Esin Küçük, ‘The Principle of Solidarity and Fairness in Sharing Responsibility: More than Window
Dressing?’ (2016) European Law Journal 22.
18
The country of first entry rule enhances legal certainty and prevent the blockages that may
result from ‘asylum shopping’, i.e., asylum seekers moving from one jurisdiction to another in
search of better conditions.121
Further, it must be noted that the Ishkafel Asylum Regulation defines ‘application for
international protection’ as an application defined in Article 2(h) of Directive 2011/95/EU.122
The said provision, therefore, defines such applications to include a request made by a third-
country national for protection, who can be understood to seek refugee status or subsidiary
protection status, and who does not explicitly request another kind of protection, that can be
applied for separately.123 Further, the applicant should have a genuine connection or close links
with the third country, i.e., Razzil, in the present case. The mere fact of having had the
opportunity to seek protection does not represent a meaningful link.124
In the present case, both Wadia and Britannia had prima facie started assessing the asylum
seekers.125 The government had sent envoys specially to their settlement to thoroughly question
them and further asked them to present themselves before Wadia RSDA and Britannian
RSDA.126 All of these facts and circumstances imply that Wadia and Britannia where the first
country to have initiated the assessment of applications and these countries, and were not used
merely for transit purposes.
B. BURDEN-SHARING AND CO-OPERATION IS A PART OF INTERNATIONAL OBLIGATIONS
Member States are required to assist each other in carrying out tasks which flow from treaties,
to take any appropriate measure to ensure fulfilment of the obligations arising out of the treaties
and to facilitate the achievement of the tasks. 127 The principle of sincere cooperation – which
applies to all policy areas – obliges the Member States to assist each other in the area of asylum
and immigration. 128
121
NS and ME C 411/10 and C 493/10 (2011) [79]; Shamso Abdullahi v Bundesasylamt C-394/12 (2013) [53].
122
Dublin Regulation III, art 2(b).
123
European Union, Directive 2011/95/EU, art 2(h).
124
UN High Commissioner for Refugees, ‘Aide Mémoire: Directive on Minimum Standards on Procedures on
Granting and Withdrawing Refugee Status’ (18 November 2003)
<http://www.unhcr.org/refworld/docid/402a2d6e4.html> accessed 1 June 2022.
125
126
ibid.
127
Treaty on European Union, art 4(3).
128
Committee on Civil Liberties, Justice and Home Affairs, ‘Working Document on Article 80 TFEU –
Solidarity and Fair Sharing of Responsibility, Including Search and Rescue Obligations’ (European Parliament,
15 June 2015) <https://www.europarl.europa.eu/doceo/document/LIBE-DT-564907_EN.pdf> accessed 7 June
2022.
19
Article 80 of TFEU states that appropriate measures need to adopted to give effect to the
principle of solidarity and fair sharing of responsibility, including its financial implications,
wherever necessary.129 The Council Decision of the EU has reaffirmed the solidarity between
the Member States as a binding principle and the distribution of applicants for international
protection as mandatory, thus confirming the principle of solidarity going even beyond
financial measures.130
In Council v. Hungary,131 Council v. Czech Republic,132 and Council v. Poland,133 the three
countries decided not to cooperate in the implementation of the decision which resulted in the
European Commission referring them to the CJEU for non-compliance with their legal
obligations on relocation. Following the referral, the Advocate General issued the opinion134
that by refusing to comply with the mechanism for the mandatory relocation of applicants for
international protection, the three Member States had failed to fulfil their obligations, including
non-compliance with the principle of solidarity.
Hence, burden sharing is an essential international obligation. Razzil is facing a massive inflow
of Nai’xans in its territory. It is already housing a mass exodus of 2000 immigrants.135 With an
inflow of 630 Nai’xans136 initially and then a group of 400137 and 300138 in upcoming weeks,
Razzil is overburdened with the responsibility of Nai’xans. It is also important to note that it
will get difficult for just one State alone to uphold the human rights of all the asylum seekers
coming its way. Therefore, burden-sharing and cooperation becomes the need of the hour
meaning the countries in the Ishkafel Union ought to share the responsibility to offer protection
to the asylum seekers.
129
European Union, ‘Treaty on the Functioning of the European Union’ (enforced 1 January 1958) OJ L 326/47-
326/390, art 80.
130
Council Decisions (EU) 2015/1523 (14 September 2015) and 2015/1601 (22 September 2015) OJ 2015
L239/146 and L248/80.
131
Commission v Hungary C-718/17 (2020).
132
Commission v Czech Republic C-719/17 (2020).
133
Commission v Poland C-715/17 (2020).
134
Court of Justice of the European Union, ‘Advocate General’s Opinion in Cases C-715/17 Commission v
Poland, C-718/17 Commission v Hungary and C-719/17 Commission v Czech Republic’
<https://curia.europa.eu/jcms/upload/docs/application/pdf/2019-10/cp190133en.pdf> accessed 8 June 2022.
135
136
137
ibid.
138
20
MEMORIAL ON BEHALF OF DEFENDANT [PRAYER]
PRAYER
For reasons stated above, the Defendant hereby requests the Court to adjudge and declare
that:
-I-
THE DETENTION OF ASYLUM SEEKERS BY RAZZIL DOES NOT VIOLATE PRINCIPLES OF

INTERNATIONAL LAW.
- II -
RAZZIL’S CLOSURE OF BORDERS IN LIGHT OF PUBLIC HEALTH CRISIS DOES NOT VIOLATE THE
PRINCIPLE OF NON-REFOULEMENT.
- III -
THE ILLEGAL IMMIGRATION CONTROL BILL, 2019 INTRODUCED BY RAZZIL DOES NOT
CONTRAVENE ARTICLE 31 OF THE REFUGEE CONVENTION AND RAZZIL’S OTHER OBLIGATIONS
UNDER INTERNATIONAL LAW.
- IV -
THE COUNTRIES APART FROM RAZZIL IN THE ISHKAFEL UNION HAVE A DUTY TO SHARE
THE RESPONSIBILITY TO OFFER PROTECTION TO THE ASYLUM-SEEKERS AND ADDRESS THE
REFUGEE CRISIS.
Respectfully submitted,
AGENTS FOR THE DEFENDANT
XXI

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REGIONAL ISHKAFEL COURT OF HUMAN RIGHTS

NALSAR UNHCR PUBLIC INTERNATIONAL LAW

THE DEMOCRATIC REPUBLIC OF NEW BALANAR

THE FEDERATION OF RAZZIL

MEMORIAL FOR DEFENDANT

TABLE OF CONTENTS ....................................................................................................... II

LIST OF ABBREVIATIONS .............................................................................................. IV

INDEX OF AUTHORITIES ................................................................................................ VI

STATEMENT OF JUSRISDICTION ............................................................................. XIV

ISSUES RAISED............................................................................................................. XVIII

SUMMARY OF ARGUMENTS ....................................................................................... XIX

ARGUMENTS ADVANCED .................................................................................................. 1

ISSUE I: THE DETENTION OF ASYLUM-SEEKERS BY RAZZIL DOES NOT

B. Human Rights Of Nai’xans Are Not Absolute............................................................ 3

C. Right Of Asylum Is A Right Of A State, Rather Than Right Of An Individual ......... 4

ISSUE II: RAZZIL’S CLOSURE OF BORDERS IN LIGHT OF A PUBLIC

A. Exceptions for Non-Refoulement .................................................................................. 5

C. Rights to be curtailed during public health emergencies. ......................................... 11

B. Burden-Sharing And Co-Operation Is A Part Of International Obligations............... 19

PRAYER ............................................................................................................................. XXI

SR. NO. ABBREVIATION EXPANSION

Articles on Responsibility of States for Internationally

7. CJEU Court of Justice of European Union

9. ECHR European Convention on Human Rights of 1950

10. ECtHR European Court of Human Rights

12. EU European Union

13. EXCOM Executive Committee

14. HRC Human Rights Commission

International Covenant on Economic, Cultural and

16. ICJ International Court of Justice

17. IHL Protocol Relating to Status of Refugees of 1967

18. IHRL International Human Rights Law

20. Ors Others

21. p Page number

22. para Paragraph

23. Razzil The Federation of Razzil

24. Refugee Convention Convention Relation to Status of Refugees of 1951

International Covenant on Civil and Political Rights

26. The Bill The Illegal Immigration Control Bill, 2019

27. UDHR Universal Declaration of Human Rights of 1948

28. UK United Kingdom

29. UN United Nations

30. UNGA United Nations General Assembly

31. UNHCR United Nations Human Rights Commission

33. VCLT Vienna Convention on the Law of Treaties of 1969

Treaties, Conventions and International Declarations

Asylum and Immigration Appeals Act 1999.................................................................... 9, 11

David A. Martin, Reforming Asylum Adjudication: On Navigating the Coast of Bohemia,

Office of Commission of Human Rights, ‘Emergency Measures and Covid-19: Guidance’

UN Group of Governmental Experts, ‘Report of the Group of Governmental Experts on

Asian-African Legal Consultative Committee, ‘Principles relating to the Treatment of

EXCOM Conclusion No 58 (XL) ‘The Problem of Refugees and Asylum-Seekers Who

M Colemar, ‘Conference of Plenipotentiaries on the Status of Refugees and Stateless

NCBI, ‘Understanding Emerging and Re-emerging Infectious Diseases’ (2007)

Other Cases of Different Jurisdictions

Commission v Czech Republic C-719/17 (2020).................................................................. 28

[THE ISHKAFEL CONTINENT]

[NAI’XANS: A MINORITY IN ALANOR]

[THE FLEEING OF NAI’XANS FROM ALANOR]

[DETENTION OF ASYLUM SEEKERS BY RAZZIL]

[THE DISPUTE RELATING TO ASYLUM SHARING RESPONSIBILITY]

[PUBLIC HEALTH CRISIS IN RAZZIL]