TEAM 16R

KENYATTA UNIVERSITY SCHOOL OF LAWMOOTINGLPL 403

IN THE INTERNATIONAL COURT OF JUSTICE AT THE PEACE PALACE

THE HAGUE, THE NETHERLANDS

IN THE CASE CONCERNING THE ALFURNAN MIGRANTS

THE STATE OF ALFURNA --------------------------------------------------- APPLICANTS.

V

THE STATE OF RUTASIA. --------------------------------------------------- RESPONDENT.

RESPONDENT MEMORIALS

1. MAINA PATRICK NJAMA. - L95S/7019/2009.

2. PAUL MUHORO. - L95/1177/2009.

3. ROSEMARY N. KIMANI. - L95S//2009.

Contents

STATEMENT OF JURISDICTION....................................................................................................................3

QUESTIONS PRESENTED..............................................................................................................................4

STATEMENT OF FACTS.................................................................................................................................5

SUMMARY OF PLEADINGS.........................................................................................................................12

PLEADINGS................................................................................................................................................13

1.Alfurna is no longer a state and accordingly lacks jurisdiction over Alfurnas claims..........................13

i). Definition and criteria of statehood............................................................................................13

ii)Loss of statehood through loss of territory via submersion.............................................................14

iii)permanent population......................................................................................................................14

iv.)No effective Government................................................................................................................15

v.)Capacity to Enter Into Relations with Other States.........................................................................16

vi.)Competence of the court.................................................................................................................16

b).Rutasia has not violated international law in its treatment of migrants from Alfurna......................17

c)Alfurnan migrants held in Woeroma centre are being treated in accordance with Rutasia’s

obligations under international law and the proposed transfer to Saydee is legal................................18

d).Rutasia’s conduct in respect of Alfurna’s assets is consistent with international law.......................20

b).The court lacks jurisdiction to entertain this matter.....................................................................23

Conclusion/Prayer for Relief......................................................................................................................23

REFERENCES..............................................................................................................................................24

2

STATEMENT OF JURISDICTION

Pursuant to the Joint Notification and Compromis concluded on 14TH/September/2012, signed in

The Hague, The Netherlands between Alfurna( “the Applicant) and the State of Rutasia (“the

Respondent), collectively “the parties,” and in accordance with Article 40(1) of the Statute of the

International Court of Justice, the Parties hereby submit to this Court its dispute concerning the

Alfuran Migrants.

In accordance with Article 3 of the Compromis, the Court is hereby requested to adjudge the

dispute in accordance with the rules and principles of international law, including any applicable

treaties and to determine the legal consequences, including the rights and obligations of the

Parties, arising from its Judgement on the questions presented in the Case.

3

QUESTIONS PRESENTED

The State of Rutasia respectfully asks the honorable Court:

Whether Alfurna is still a state, since it lost all of its territory, which will determine whether the

court has jurisdiction in the matter.

Whether Rutasia has an obligation to accept the illegal Migrants from (the former) Alfurna into

its territory.

Whether Rutasia has violated international laws in its treatment of Migrants from (the former)

Alfurna.

Whether Alfurna has the right to make any claims with regards to the migrants since it failed to

take available affirmative steps to protect them.

Whether the proposed transfer of Migrants from (the former) Alfurna to the Republic of Saydee

is legal.

Whether Rutasia’s conduct in respect of Alfurna’s assets is consistent with international law.

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STATEMENT OF FACTS

The dispute centers on Rutasia’s detention and planned transfer of Alfurnan Migrants in

the Woeroma Immigration Processing and Detention Centre (“the Woeroma Centre”), to the

Republic of Saydee, and the closure and liquidation of the Alfurna Reserve Bank’s account held

by the Provincial Bank of Lando, one of Rutasia’s provincial reserve banks, through a

Presidential Direction from President Eileen Millard of Rutasia on 15 March 2012.

Batri and Engili were two low-lying islands located in the Bay of Singri. They were

settled by Finutafu in 1812, and in 1904 became the independent republic of Alfurna. Alfurna

historically maintained a close relationship with Finutafu, a developed state on the western side

of the Bay of Singri approximately 800 miles west of the islands. For much of Alfurna’s history,

its economy was based on agriculture and the abundant fisheries in the Bay. In the mid-1960s,

entrepreneurs were attracted by Alfurna’s potential as a tourist destination. Initial investments

proved to be very successful, and over the course of the next 20 years, investment in the

Alfurnan tourism sector accelerated and the industry grew rapidly.

With the increased income from tourism, and foreign development assistance in the form of

grants and loans, Alfurna was able to expand and upgrade some of its basic infrastructure,

including the national airport on Batri. In 2001, Alfurna’s Gross Domestic Product had risen to

USD 200 million, and its population was 53,000. Nullatree Cove was a coastal village on Engili,

whose residents had lived in isolation from other islanders since the mid-nineteenth century.

They were of the same cultural and ethnic origins as other Alfurnans, but rejected urbanisation

and technology. Nullatree Cove villagers maintained a subsistence lifestyle. The Nullatree Cove

village population fluctuated over time, but was generally around 1,500 people.

Rutasia is a large developed state on the eastern side of the Bay of Singri, its coast lying

approximately 350 miles east of Alfurna. Rutasia’s head of state is President Eileen Millard.

Rutasia has a diverse economy, but is heavily reliant on the burning of fossil fuels. Rutasia also

lends and provides development assistance to other governments, particularly those in the Bay of

Singri region, is a permanent member of the Paris Club, and has participated in a number of 5

sovereign debt restructurings under Paris Club arrangements, including under the Heavily

Indebted Poor Countries Initiative. Relations between Rutasia and Alfurna have always been

friendly, and for decades, many Rutasians travelled to Alfurna for tourism and business each

year.

The climate of the Bay of Singri includes an annual monsoon season with strong

cyclones and heavy and unpredictable winds preceding and following the monsoons.

Occasionally, the Bay also experiences undersea earthquakes with resulting tsunamis that

have devastated the surrounding coastal regions. The hydrology of the Bay is such that, in

addition to water-level changes resulting from waves and tide, the average sea level varies

throughout the year, and owing to such local factors as salinity, rainfall, riverine input, and

evaporation, the Bay has exhibited a net water gain over the past two centuries. Within the first

decade of Alfurna’s settlement it became clear that low-lying regions of its two islands were in

frequent danger of being swamped during the Bay’s extreme weather and earthquake events. In

response to these vulnerabilities, seawalls were erected around the islands in the early twentieth

century, although from the very beginning monitoring and maintenance of the seawalls were

hampered by budgetary difficulties.

By 1990, the rate at which sea levels were rising had increased to such an extent that

many parts of the islands were underwater even at low tide. Erosion from the inundation and the

routine monsoon and cyclone activity accelerated the extent to which areas of the islands were

becoming submerged, with parts of the seawalls falling into the Bay as the underlying land was

washed away.

Rutasia signed and ratified the UN Framework Convention on Climate Change

(“UNFCCC”) in 1992. Later that year, in response to growing public alarm at the persistent

inundation of parts of the islands and associated damage, the Alfurnan government sought

grants and loans from various sources to finance a programme of repairs and remedial works.6

The Rutasian and Alfurnan governments swiftly reached agreement on a first step toward

what were called “Rutasia-Alfurna Closer Economic Relations.” The arrangement consisted

of a “climate change loan” of USD 125 million, tied to the use of Rutasian expertise and

resources for a long-term initiative styled the “Alfurna Climate Change Remediation Project”

(“ACCR Project”). The climate change loan was made through the Rutasian International

Cooperation Administration (“RICA”), a government agency.

The climate change loan agreement was executed on 5 June 1992. Disbursement was

conditioned on the funds being applied to repairing the seawalls and related damage,designing

and implementing other remedies and preventative measures to combat inundation, and

associated research. During the negotiations that resulted in the agreement, Rutasia insisted that

the final document include a provision requiring Alfurna to use the services of Rutasian

companies to perform substantial contracts, so long as properly qualified entities submitted bids.

In accordance with that requirement, Alfurna contracted with Rutasia’s largest private-sector

construction company, Mainline Constructions Limited (“MCL”), to perform the construction

and maintenance work on the seawalls. Alfurna’s central bank, the Alfurna Reserve Bank

(“ARB”), had maintained an account in the Provincial Bank of Lando, one of Rutasia’s

provincial reserve banks, for many years. The loan arrangement required that funds be deposited

into that account, then to be withdrawn for uses contemplated in the agreement.

Between 1992 and 1997, the full amount of the climate change loan funds were disbursed

by RICA into Alfurna’s Bank of Lando account. Most of the funds were used to pay for various

ACCR Project activities, including scientific studies into the causes of and potential solutions for

rising sea levels in the Bay of Singri. The studies concluded that one of the main causes was the

warming of the Earth’s climate.

Alfurna signed and ratified the UNFCCC in 1997 and the Kyoto Protocol to the UNFCCC in

1998. on numerous occasions, called upon states to take measures to combat climate change,

attempting to pass resolutions in the General Assembly to this effect. Alfurna also drew

particular attention to the plight of low-lying island nations facing increasing challenges posed 7

by rising sea levels, and made repeated calls on major nations to provide assistance. Rutasia

signed the Kyoto Protocol in 1998, but has not yet ratified it. From the mid-1990s, successive

Rutasian governments committed to a massive public works programme of rebuilding and

expanding the nation’s aging network of roads, bridges, railways and other public infrastructure.

According to uncontested academic studies, this initiative accelerated the generation of carbon

emissions and soot by Rutasian industry.

In January 1999, the International Monetary Fund reported that Alfurna’s debt had reached

120% of GDP. Later that year, Alfurna failed to pay any interest or principal as required under

the climate change loan, and did not meet repayment obligations to various other members of the

Paris Club. Having received correspondence from RICA and the other lenders regarding these

failures to pay, Alfurna approached the lenders, including Rutasia, to negotiate relief on the basis

of its current and anticipated financial pressures. As it did not qualify for restructuring of its debt

under Paris Club rules, Alfurna engaged in a year of bilateral negotiations with each of the lender

governments, at the conclusion of which it was able to secure varying forms of debt relief.

Rutasia, cancelled 25% of the climate change loan principal, reduced the annual interest rate

from 2.0% to 1.5%, and rescheduled repayment over an additional 15 years (that is, to 2027).

As the work in connection with the ACCR Project continued, Alfurna complained that

a significant amount of MCL’s repairs to portions of the seawalls was substandard. MCL

rejected Alfurna’s claims. In November 2001, Alfurna and MCL submitted their contractual

dispute involving the repair work to arbitration, in accordance with the loan agreement. Alfurna

withheld USD 20 million that MCL claimed pursuant to their contract, which it agreed to

preserve in the ARB account at the Provincial Reserve Bank of Lando until the arbitral panel

issued its final award.

In July 2002, Alfurna’s Treasury reported to Prime Minister Fatu that, based on a “best

case” analysis, Alfurna would encounter severe debt servicing problems within three years, and

had a high risk of missing principal payments again within the next five years. The news from

the Treasury prompted Prime Minister Fatu once more to seek renegotiation of the climate

change loan terms with RICA. At the conclusion of the discussions in September 2002, Prime

8

Minister Fatu and President Millard jointly announced an agreement that a further 25% of the

loan would be cancelled, Alfurna would be granted a grace period on repayments of principal

and interest until 15 September 2010, the interest rate would be reduced to 1.1%, and the period

for repayment of the loan would be extended for a further 20 years (that is, to 2047). It was also

agreed that, should Alfurna prevail in the MCL arbitration, the withheld funds would remain in

the ARB account, their use restricted to the original purposes and governed by the procedures of

the climate change loan.

In November 2002, the arbitrators issued their final award, in favour of Alfurna. The

panel found that a substantial portion of the most recent damage to the collapsed seawalls was

due to construction methods and selection of materials that did not adequately account for the

rapid wear and tear caused by severe weather and frequent inundation of saltwater.The tribunal

concluded that the failure to observe industry standards in construction of the seawalls by MCL

actually accelerated their collapse, awarded damages of USD 35 million to Alfurna, and

authorized the release of the USD 20 million that had been retained in the ARB account pending

the tribunal’s award. MCL promptly paid the damages award into the Lando Bank account held

in the name of the ARB.

Prime Minister Fatu established a “Climate Emergency Committee” (“CEC”) comprising

his most senior government ministers in early 2003, to examine the future prospects of Alfurna

in light of recent developments. In August 2004, the CEC reported, based on its assessment of

the scientific evidence, that the combination of earthquakes and extreme weather events would

destroy the seawalls within a few years, with the consequence that sea levels even at low tide

would overwhelm the islands. The CEC also noted that these issues were fast becoming

impossible to address given Alfurna’s other financial challenges. The CEC recommended that

the government start making plans to evacuate the Alfurnan islands. It advised the government to

identify a new “homeland,” and/or countries willing to accept Alfurnans who would be made

homeless by the impending crisis.

In January 2005, the Fatu government decided to implement all of the CEC’s

recommendations. Prime Minister Fatu made a televised address to the country, which concluded

with the following words:My fellow Alfurnans, we face the greatest challenge in our history: a

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threat to our very survival as a nation. We must work together over the coming months and years

to plan and execute a bold and unprecedented strategy – the transplanting of our people to a new

land, to ensure that Alfurna, our people and our culture, can live on whilst Mother Nature takes

our beloved islands from us. You will hear more in the coming days. But be assured that I will be

asking all of our countrymen and countrywomen for unprecedented sacrifice, which I am

confident you will accept in homage to our forebears, and in the interests of our future

generations.

Immediately following the Prime Minister’s speech, to fund the CEC’s initiatives, the

Alfurnan Parliament passed legislation declaring a moratorium on servicing all debt to foreign

lenders. Alfurna ceased repaying any of its loans. Prime Minister Fatu also approached the U.N.

General Assembly, calling upon all states to assist Alfurna at what he termed “a time of unique

tragedy and unique challenge.” “The fate of my country,” he concluded, “rests in the hands of

the international community.” Prime Minister Fatu delegated to the CEC the role of identifying

suitable options for a new homeland and approaching other nations to acquire the necessary

territory. The CEC was also tasked with seeking and negotiating emergency migration

arrangements. The CEC asked several other countries in the region to accept substantial numbers

of Alfurnan migrants, but negotiations were slow, and no state expressed willingness either to

cede territory or to provide refuge of potentially indeterminate duration to émigrés who might

number in the tens of thousands.

In mid-2006, a major earthquake rendered much of Batri Island essentially uninhabitable,

also causing significant damage to Rutasia. Over the course of the next few months, key agencies

and the executive officers of Alfurna’s government relocated to Finutafu, occupying premises

granted on temporary terms to be reviewed annually until the Alfurnan government obtained a

new homeland. Approximately 15,000 Batri Island residents were also able to relocate to

Finutafu, whilst the remainder fled to Engili. A few months later, large sections of the seawall

that had shielded Batri from the Bay of Singri were washed away, and swiftly thereafter, Batri

Island was submerged permanently. The various negotiations ultimately stalled later in 2006,

because the territories offered were too costly, too small, or lacked appropriate climate and

topography. During this time, Prime Minister Fatu spoke again, as he put it, “to the people of the

10

nation and to the nations of the world”: We are making every effort to obtain a new homeland for

all of our Alfurnan people. This is not easy. Properly identifying a suitable area and securing the

necessary arrangements are taking time. In the spirit of cooperation and in recognition of our

shared humanity, we call on all states to help us. Our people need shelter and other basic

assistance, to ensure their survival in dignity and peace. And we vow that, with your help, all

Alfurnans who wish to join in our future as a nation will be united once again in a new

homeland.

In the second quarter of 2007, a series of increasingly severe storms in the region caused

widespread flooding and damage to Engili. The remaining parts of the seawall around that Island

were further damaged, and it became obvious that it was only a matter of time before they too

collapsed.

Later in 2007, the CEC was able to persuade Finutafu to consider ceding

Nasatima Island, which had been a national park and was inhabited only by park rangers. Formal

negotiations for the sale and purchase of Nasatima Island commenced in November 2007. By 30

September 2008, Finutafu had agreed in principle to cede Nasatima Island to Alfurna, and the

two countries’ negotiators initialled a proposed treaty to accomplish that objective.

Rutasia had borrowed heavily to fund its public works programme, and as a result in late

2008, as world credit markets tightened, it experienced severe financial pressure. Its own loan

repayment obligations and the costs of attending to the consequences of the 2007 storms forced

Rutasia to find alternative streams of funding to meet its immediate financial commitments.

Among various austerity measures, Rutasia ordered RICA to improve its recovery of

development assistance loans to other states.

By early 2009, the storms and earthquakes had made Engili practically uninhabitable.

The Alfurnan government’s evacuation plans and individual arrangements enabled all but

approximately 3,000 Alfurnans to resettle elsewhere, with the majority relocating to Finutafu.

Roughly half of the remaining Alfurnans were residents of the Nullatree Cove area, who had

refused to take part in the emergency migration program because they did not wish to leave their

11

ancestral land. A few of these individuals also had Alfurnan criminal records, meaning they did

not meet the good moral character requirements imposed by all of the receiving states.

During 2009 and 2010, the Rutasian Navy encountered a number of overcrowded boats

filled with Alfurnans in Rutasian territorial waters, drifting towards the coast. A total of 2,978

Alfurnans were intercepted and brought to Blocks A and B of the Woeroma Immigration

Processing and Detention Centre (“the Woeroma Centre”), the only facility of its type

maintained by the Rutasian Immigration Department.

Of the migrants brought to Woeroma, 1,492 were Nullatree Cove villagers, who

requested that they be housed together. Rutasian authorities, believing that it would help to

maintain order among the Alfurnan migrants, agreed, and housed the Nullatree Cove villagers in

Block A, the larger and older Block. The other Alfurnans were housed in Block B. On 15

November 2011, a small earthquake in the Bay of Singri caused cracking in the walls of both

Blocks of the Woeroma Centre. On inspection, the damage was found to be superficial, but the

cracking in Block A revealed that the walls contained asbestos. Following an assessment of

resulting health risks, the Immigration Department declared on 10 January 2012 that it could not

continue to provide separate facilities for the Nullatree Cove villagers at Woeroma, and that the

design and construction of new facilities would take two years, and would cost at least USD 110

million.

Because it could no longer accommodate the housing requests of the Nullatree Cove

villagers in the short run, and could not commit to doing so in the longer term, Rutasia

negotiated an agreement with the Republic of Saydee to transfer all of those detainees to Saydee

by 28 September 2012. They were to be processed by Saydee’s immigration authorities and

housed in existing detention facilities. The agreement provided that all costs associated with the

transfer, detention, health, and welfare of the transferees would be met by Rutasia. On 26

December 2011, an earthquake destroyed the remaining sections of Alfurna’s seawall, and Engili

Island became permanently submerged under water even at low tide.

On 23 January 2012, the Nasatima Island negotiations collapsed. Finutafu blamed the

inability of the Alfurnan government to demonstrate that it had access to sufficient funds to

12

purchase the Island. However, after further pleas from the CEC and NGOs, Finutafu’s

government agreed to lease Nasatima Island to Alfurna. The term of the lease is for 99 years, at

an initial rental of USD 1 million per year. The rent is to increase with an agreed measure of

inflation. Alfurna is permitted to cancel the lease with five years’ notice, if and when it procures

a permanent homeland. The lease provides that Alfurna will have complete control over the

Island, and its residents will have no claim to Finutafuan citizenship or to the protection of that

country’s laws.

RICA put Alfurna on notice on 10 February 2012 that it had been in default under the

renegotiated loan agreement for over a year, and demanded that Alfurna remedy the default

within 30 days. Alfurna did not respond to the notice. On 15 March 2012, President Millard

officially declared that the entire loan balance (approximately USD 50 million) was due and

payable, and that the government was proceeding to seize Alfurnan property in Rutasia to offset

its losses. At the President’s direction, the Provincial Reserve Bank of Lando closed the ARB’s

account and transferred the balance, then approximately USD 25 million, to the Rutasian

government’s general consolidated fund.

Alfurnans in Finutafu and elsewhere petitioned Alfurna to address the plight of the

migrants detained in Rutasia. The Alfurnan government sought discussions with the Rutasian

authorities, which declined to entertain them. It then issued a communiqué calling on Rutasia to

release the migrants from detention. The statement noted that the Alfurnan government was in

negotiations with Finutafu to arrange for a staged repatriation of all Alfurnans to Nasatima

Island. It further repeated Alfurna’s call for the migrants to be treated with dignity.

Rutasia and Alfurna became members of the United Nations in 1945 and 1947,

respectively. Both parties have ratified the International Covenant on Civil and Political Rights,

the International Covenant on Economic, Social and Cultural Rights, the Vienna Convention on

the Law of Treaties, the Convention Relating to the Status of Refugees, and the Protocol

Relating to the Status of Refugees. Alfurna has also ratified the Vienna Convention on

Succession of States in Respect of State Property, Archives and Debts. Rutasia has ratified the

Convention on Rights and Duties of States. In late 2000, both Alfurna and Rutasia joined in the

adoption of the Millennium Declaration by the UN General Assembly.

13

SUMMARY OF PLEADINGS

The State of Rutasia seeks to respectfully bring to the attention of this Honorable Court,

the fact that it lacks the jurisdiction in this matter, since Article 31 of the Charter of the

International Court of Justice stipulates that only state parties may refer matters to the

jurisdiction of the Court. And Alfurna no longer qualifies as a State party since it does not satisfy

the territorial requirement of statehood.

The State of Rutasia had every right to apprehend and detain the Migrants from Alfurna,

since they were found illegally in the territorial waters of Rutasia without following the

recognized procedures under International Refugee Law. Thus, Rutasia did not break

international Laws since it acted within the confines of its domestic laws.

The treatment of the Migrants from Alfurna at the Woeroma Center is in line with the

international obligations of the State of Rutasia and the proposed transfer of the Migrants to the

Republic of Saydee is legal and within the confines of international law.

The State of Rutasia had every right to seize the assets of Alfurna, since it is not a state

party to the Vienna convention on succession of States in respect of State property,archives

and debts.

The Honorable Court lacks the jurisdiction to determine the dispute on the seizure of

assets from Alfurna since the money in question was part of the climate agreement and it was

clearly stipulated how issues concerning the climate agreement shall be solved through the

provisions of the contract, by arbitration.

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PLEADINGS

1.Alfurna is no longer a state and accordingly lacks jurisdiction over

Alfurnas claims.

i). Definition and criteria of statehood.

A state in the oxford online legal dictionary is defined as a Group or groups of people which

have acquired international recognition as an independent country and which have a population,

a common language and a defined and distinct territory.1

A more detailed explanation of what constitutes the criteria for statehood is set forth in article 1

(1)of The 1933 Montevideo Convention on the Rights and Duties of States .Under the

Montevideo Convention, an entity is a State when it possesses:

(1) a permanent population;

(2 )a defined territory;

(3 )a government and

(4) the capacity to enter into relations with other states.

ii)Loss of statehood through loss of territory via submersion.

Such an occurrence is unprecedented. Preliminarily, a state requires a territorial foundation from

which it can assert itself, given that a state is in essence a territorial entity2.The territory must be

adequately recognized and controlled regularly by an entity to qualify for statehood. Jessup

agreed with this criterion and in his arguments submitted in favour of the admission of Israel to

the UN and stated that;

“…the reason for the rule that one of the necessary attributes of a state is that it shall possess

territory and that one cannot contemplate a state as a kind of disembodied spirit”.

1 http://www.duhaime.org/LegalDictionary/S/State.aspx2 Justus Reid Weiner & Diane Morrison,Legal implications of ‘safe passage’ Reconciling a viable Palestinian state with Israel’s security requirements,22 CONN.J.INT’LL.233,246(2007).

15

In the case of Deutsche continental Gas-cessels Chaft V Polish state(1929)5 AD, the tribunal

held that;

“in order to say that a state exists and can be recognized as such its territory must have a

sufficient constituency…”

As such there can be no state without an area of land and equally a “nomad state” cannot exist.

Conceptually, under the Montevideo convention, a sinking state ceases to exist once its

permanent territory is no longer inhabitable.

In paragraph 25 and 32 of the compromise it is clear that the storms and earthquakes have made

Alfurna practically inhabitable. The only available recourse for Alfurna after losing their

territory was to acquire another territory from another state through cessation. Though paragraph

31 shows efforts by Alfurna to cede Nasatima Island, financial constraints that are evident in

paragraph 45 have led to collapse of any possible cessation agreement with Finutatu. They have

only managed to lease the Island for 99 years which means Alfurna do not have a permanent

Territory.

As such we can conclude that Alfurna has lost its statehood through loss of territory.

iii)permanent population

Oppenheim defines population as an aggregate of individuals who live together as a

community,though they may belong to different races or creeds or cultures,or be of different

colour.As a criteria for statehood,permanent population requires that there must be people

identifying themselves with the territory no matter how small or large the population is.

The rule is that a state must have a permanent population;it is not a rule relating to the

nationality of that population.As such the grant of nationality is a matter which only states by

their municipal law can perform.Nationality is thus dependent on statehood and not vice versa.

Currently the law is not clear whether if stateless persons enter into a given nation do they

acquire that nationality automatically or not. Its however clear that a state is not obliged to

extend its nationality to all persons resident in its territory. In absence of a definite nationality by

16

the individuals and lack of territory where they can lay their loyalty to then we can conclusively

say that the criteria for permanent population has failed.3

After the submersion of Alfurna, the people have been displaced to different places and we can

conclude that they do not entail a permanent population.

iv.)No effective Government.

A government or at least some governmental control,is required for qualification as a state.this

requirement is central to a claim for statehood in that all the other criteria depend on it.A striking

modern illustration is that of former Belgium -Congo.The government was bankrupt,divided and

in practice hardly able to control even capital.Legal scholars have since argued that this

government did not meet the threshold of an effective government.

The requirement of government has the following legal effects.4Negatively the lack of a coherent

form of government in a given territory militates against that being a state.The continued absence

of a government will tend to the dissolution of any state in that area.certain particularly nomadic

tribes do not have government in the sense required and so are not states,though they may have a

more limited legal personality.

Positively , the existence of a system of government in,and referable to,a specific territory

indicates without more certain legal status and is in general a precondition for

statehood.Continuity of government in a territory is one factor determining continuity of the state

concerned.

Just like in Belgium Congo-the Alfurna government does not meet the criteria of an effective

government.we can conclude that it lacks the finances to support its citizens and even cannot

provide them with a permanent territory to reside in.As such we submit that Alfurna does not

have an effective Government.

In addition to this,a government still needs a reasonable prospect of permanency,a sufficient

degree of stability and the habitual and willing obedience of the bulk of the

3

4

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population.5Thegovernment should not meet open resistance to its authority.popular support is

also required because it is the proper evidence of effectiveness.At a minimum,popular support

requires the ability to exact habitual obedience.6

This habitual obedience is not evident in Alfurna.In paragraph 3 of the compromis, its noted that

the Nullatree Cove residents lived in isolation from other islanders.They rejected urbanization

and technology.In paragraph 32,its stated that residents of Nullatree Cove area had refused to

take part in the emergency migration program because they did not wish to leave their ancestral

land.This was a clear picture that they were constantly disobeying the Alfurna government.

v.)Capacity to Enter Into Relations with Other States.

One can conclusively say that this is not a criterion but is merely a consequence of statehood and

one which is not constant but depends on the status and situation of political states. In order to be

able to enter into relations with other states the existence of a state and its independence must not

be in question.

Alfurna is no longer a state after submersion of its territory and as such has no capacity to enter

into relations with other states.

vi.)Competence of the court.

Article 34 of the statute of International court of Justice explicitly states that “only states may

be parties in cases before this court.”.

5 Extracted from 2012 Jessup winning competition.6 CG Fenwick,”The Recognition of New Governments Instituted by Force”(July 1944)38:3 AJIL 448 at 448.

18

We wish to submit on the onset our strong rejection of the notion that Alfurna is a state .As such

it lacks the locus standi to institute an action before this honourable court and consequently the

court lacks jurisdiction to entertain this case.

b).Rutasia has not violated international law in its treatment of migrants

from Alfurna.

As a general rule, no country is obliged to allow foreigners onto its territory. It is one of the

elements of state sovereignty that a country may decide if and how it will permit non-citizens to

enter. If a country accepts to host illegal migrants, then they have an obligation to conform to the

rules of the host state. The rules must be the same as those applied to aliens in that country.

The legal framework that supports the international refugee protection regime was built by States

by acceding to the 1951 Convention relating to the Status of refugees and the protocol relating to

the status of refugees.

While the international community has generally responded swiftly and generously to refugee

crises over the past half century, in recent years, some worrying trends have begun to emerge.

Countries that once generously opened their doors to refugees have been tempted to shut those

doors for fear of assuming open-ended responsibilities, of abetting uncontrolled migration and

people-smuggling, or of jeopardizing national security. Scholars have argued that the migrants

should be discriminated against the locals in what they call "preservation of the state's limited

resources for the education of its lawful residents.”

Real and perceived abuses of asylum systems as well as irregular movements, have also made

some countries more wary of refugee claimants, and concerned that resources are not being

sufficiently focused on those in greatest need. Refugees have been refused admission to safety or

have been expelled from asylum countries. Those who have reached a potential country of

asylum have sometimes been turned away or sent back without being able to apply for asylum.

As such dictating that immigrants must follow international laws as opposed to the national laws

of the host country may hinder countries from accepting refugees in future. If we are to

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encourage states to accept and host refugees we must allow them to be governed by the rules of

the host country unless it is dehumanizing or goes against accepted public morality.

In light of the Alfurna case, Rutasia has shown goodwill by accepting the migrants from

Alfuna.In any way the government of Alfuna is in an awkward position to put forth such a claim

as it has failed to provide social and basic needs to its citizens. Infact the Rutasian Government is

offering more services to the migrants than the Alfuna Government is able to offer.Apart from

being denied freedom of movement(which is explained below)the migrants have been accorded

all the other rights and so the Alfuna Government has no case to complain in this respect.

The following case shows how host states are struggling to provide all the needs of migrants and

at the same time show that Rutasia has not violated any international law in treatment of the

migrants.

Plyler v. Doe

This is a class action, filed in the United States District Court for the Eastern District of Texas in

September, 1977, on behalf of certain school-age children of Mexican origin residing in Smith

County, Tex., who could not establish that they had been legally admitted into the United States.

The action complained of the exclusion of plaintiff children from the public schools of the Tyler

Independent School District. The Superintendent and members of the Board of Trustees of the

School District were named as defendants; the State of Texas intervened as a party-defendant.

After certifying a class consisting of all undocumented school-age children of Mexican origin

residing within the School District, the District Court preliminarily enjoined defendants from

denying a free education to members of the plaintiff class. In December, 1977, the court

conducted an extensive hearing on plaintiffs' motion for permanent injunctive relief.7

Even though the court of appeal finally ruled that the children had to be afforded education the

case serves to show how the host states are finding it difficult to provide all the requirements of

the refugees.Other cases that have been instituted by states that feel that the host countries have

violated international law in treatment of its migrants include(without giving the facts);

7 http://www.law.cornell.edu/supct/html/historics/USSC_CR_0457_0202_ZO.html#457_US_202n2 accessed on 13/11/2012.

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Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 350 (1938).

Tigner v. Texas, 310 U.S. 141, 147 (1940).

F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920).

Trimble v. Gordon, 430 U.S. 762, 770 (1977).

Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175 (1972)

Meyer v. Nebraska, 262 U.S. 390, 400 (1923).

San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 35 (1973).

These cases portray a worrying trend that might frighten states from accepting migrants.

c)Alfurnan migrants held in Woeroma centre are being treated in

accordance with Rutasia’s obligations under international law and the

proposed transfer to Saydee is legal.

Countries are under no obligation to protect people who do not deserve international

protection.As per Article 1 F of the refugee status convention,a person does not deserve

international protection if there are serious reasons for considering that the person has committed

a crime against peace,a war crime or a crime against humanity;has committed a serious non-

political crime outside the country of refuge prior to admission to that country as a refugee;or

that he/she has been guilty of acts contrary to the purposes and principles of the United Nations.

Some of the migrants from Alfurna fall under this category

Article 3 of the convention relating to status of refugees provides that the contracting state shall

apply the provisions of this convention to refugees without discrimination as to race,religion or

country of origin.To this extent the state of Rutasia has not discriminated against these migrants

Article 16 of the same convention provides that a refugee shall have free access to the courts of

law on the territory of all contracting states. this right was granted in paragraph 43 when ILSA

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instituted a case representing the refugees. They were against the proposed transfer of the

refugees to Saydee.

Article 21 provides that as regards to housing, the contacting states, in so far as the matter is

regulated by laws or regulations or is subject to the control of public authorities, shall accord to

refugees lawfully staying in their territory treatment as favourable as possible and in any event

not less favourable than that accorded to aliens generally in the same circumstances. Rutasia has

provided the only available housing to the refugees as required by the convention.

Article 31 provides that no penalties shall be imposed on the refugees on account of their illegal

entry. Equally no penalty has been imposed on the unlawful migrants of Alfurna.

Article 33 prohibits expulsion or refoument. Article 33 (2) however provides that this provision

may not be claimed by a refugee whom there are reasonable grounds for regarding as a danger to

the security of the country in which he has been convicted by a final judgement of a particular

serious crime. Again reference is made to paragraph 32 of the compromis which tells us that

among the refugees some have serious criminal records making their expulsion to conform with

international laws.

In any way it is universally accepted that necessity is enough ground to negate the provision of

non-expulsion in article 33.Paragraph 37 states that an earthquake caused cracking in the walls of

Woerema centre.Paragraph38 categorically states that Rutasia only contacted Saydee because it

could no longer accommodate the housing requests of the migrants. All the state is doing is

trying to transfer them to a place where they will have better facilities and the transfer is in good

faith.

The following case serves to show that detention of illegal migrants is allowed and that Rutasia

has not violated international laws.

AHMED ALI AL-KATEB v PHILIPPA GODWIN,

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The High Court of Australia held that unsuccessful asylum seekers who could not be removed to

another country, despite their wish to leave Australia, could continue to be held in immigration

detention indefinitely.

Both cases involve asylum seekers who had asked to be returned to the Middle East. The Federal

Government has been unable to reach arrangements with other countries to take them, but argued

that the Migration Act required they be held in immigration detention in the mean-time,

regardless of whether such an arrangement could ever be reached.

Mr. Al-Kateb, 28, is a stateless Palestinian who was born and lived most of his life in Kuwait. He

arrived in Australia in December 2000 and applied for a protection visa. His application was

dismissed by the department, the Refugee Review Tribunal, the Federal Court and the Full

Court of the Federal Court. Mr. Al-Kateb then told the department he wished to leave Australia

and be sent to either Kuwait or Gaza. In February 2003 he initiated action in the Federal Court

claiming he was being unlawfully detained. The Court held that although there was no likelihood

of removal in the reasonably foreseeable future, he was not unlawfully detained. Justice John

Mansfield ordered Mr. Al Kateb’s release in April 2003, pending an appeal. Mr. Al Khafaji’s,

31, is an Iraqi national who fled with his family to Syria in 1980. He arrived in Australia in

January 2000. His application for a protection visa was unsuccessful and he asked to return to

Syria. The Federal Court ordered his release from detention as there was no real prospect of

removal in the reasonably foreseeable future. The Minister appealed to the Full Court. In August

2003, on application from the federal Attorney-General, the High Court ordered that both cases

be removed into this Court to be heard together.

The High Court, by a 4-3 majority, held that Migration Act provisions requiring the continued

Detent on of unlawful non-citizens are not invalid. Under the Act, detention must continue until

an unlawful non-citizen is either removed from Australia, deported or granted a visa. The

majority held that as a purpose of detention was the eventual removal of unlawful non-citizens

the detention was not prohibited by the Constitution. Accordingly, the Court dismissed Mr. Al-

Kateb’s appeal and allowed the Minister’s appeal in Mr Al Khafaji’s case.

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d).Rutasia’s conduct in respect of Alfurna’s assets is consistent with

international law.

The issue of seize of state assets should be guided by the Vienna convention on succession of

States in respect of State property, archives and debts. However we must state ab initio that the

state of Rutasia has not ratified this convention. As such we wish to state that our reference to the

convention is without prejudice to Rutasia’s contention that the provisions of the convention are

not binding in this case.

Article 8 of the convention defines state property of the predecessor state as property, rights and

interests which at the date of the succession of states were according to the internal law of the

predecessor state, owned by that state.

Article 33 defines state debt as any financial obligation of a predecessor state arising in

conformity with international law towards another state, an international organization or any

other subject of international law.

It is our humble submission that the issue of seizure of state property should be dealt with in

reference to contract law. It is not in dispute that the climate loan agreement was executed on 5th

June 1992 while the full amount was disbursed by RICA into Alfurna’s bank of Lando account

between 1992 and 1997.The state of Rutasia in accordance with the agreements terms put

Alfurna on notice on 10th February 2012 that it had been in default under the negotiated loan

agreement for over a year and demanded that Alfurna must remedy the default within thirty days.

However the state of Alfurna ignored this demand. This led to the president of Rutasia declaring

that the entire loan balance was due and payable. The provincial Reserve Bank of Lando then

closed the ARB’s account and transferred the balance to Rutasian government.

This seizure was in accordance with the climate change agreement. To be precise the climate

change provides;

“the failure of the debtor to make a scheduled payment within 30 days of the date on which it is

due shall constitute a default under the loan agreement. Once the debtor is informed of the

default and fails to cure it within an additional 30 days, the entire principle balance of the loan,

24

with the interest accrued to that point shall be treated as due and owing. The creditor may at its

election seize for its own account any collateral or other property of the debtor subject to its

control, without further notice and without further without the need for any judicial

authorization, up to the amount of the then-current indebtedness.”

Alfurna after being notified of the default failed or neglected to reply or rectify the default. As

such the state of Rutasia had the right to seize Alfurna’s property in accordance with the climate

agreement.

Peruvian Guano Company c. Dreyfus frères et al.

The action presented complicated issues between two parties to whom the

Peruvian authorities had at different times granted monopoly concessions of guano. The main

question was the right of both concessionaries to seize a cargo of guano claimed by each as its

property. On August 10, 1880, the Court of Appeal at Brussels13 delivered a judgment which

decided on previous rulings by the Civil and Commercial Tribunals.

Before the Court of Appeal, the defendants, Dreyfus Brothers, claimed that they had the right to

seize the guano because the guano cargo was an agreed method of repayment of a debt

contracted by the Peruvian Government. The Court recognized and upheld this assertion.

Government of Ottomanv v. Sclessin,8 the Civil

A Tribunal at Antwerp was called upon to decide over the validity of a seizure of certain

Krupp cannons belonging to the Ottoman Government on their way to Turkey. The action was

brought by the Turkish Government for the purpose of vacating the attachment authorized by the

president of the Commercial Tribunal of Antwerp, in an action in which the attaching company

sued for the payment of damages for the non-execution of a contract entered into with a

representative of the Turkish Government for certain supplies and labour. The attachment was

provisional pending the appeal brought by the Turkish Government to the Civil Tribunal for a

judgment which would declare the attachment null and void, or would enable the attaching

company to transform it into a levy of execution. The tribunal ruled against the Turkish

Government.25

We also submit that the state debt owed to Rutasia was not an odious debt and as such the

contract must be enforced. In international law, an odious debt is a legal theory that holds that

the national debt incurred by a regime for purposes that do not serve the best interests of the

nation should not be enforceable. Such debts are, thus, considered by this doctrine to be personal

debts of the regime that incurred them and not debts of the state. 8

The same was buttressed in the following case which is quite similar to the Alfurna case;

Norway’s ship export debt 9

After an evaluation, the Government of Norway in 2006 determined that obligations arising out

of lending to certain developing countries as part of the Ship Export Campaign of 1976–1980,

and guaranteed through the Norwegian Institute for Export Credits, should be cancelled on

grounds that Norway ought to share responsibility with the debtor countries for the failure of the

programme as a development policy, given what were determined to be inadequate needs

analyses and risk assessments. This is not an example of “odious debt” and indeed the

Government stressed that the debt was not “illegitimate”. But the notion of co-responsibility

exemplified by the unilateral and unconditional cancellation of these debts on 2 March 2007 does

reflect the idea that repayment may be subject to broader considerations of the equities of the

debtor–creditor relationship.

However, the Alfurna case must be distinguished or rather contrasted with the following case;

German repudiation of Austrian debts – 1938 10

The Government Austria was heavily indebted to foreign creditors at the time of the German

annexation of Austria in 1938, when loans from creditors had been expressly designed to prevent

union with Germany. Germany repudiated the debt, citing prior American and British practice 8 http://en.wikipedia.org/wiki/Odious_debt9 the concept of odious debt in public international law prof. Robert howse no. 185 july 2007

10 Watson G (1997). The Law of State Succession, in Contemporary Practice of Public International

26

and arguing that it was contracted against the interests of the Austrian people (Hoeflich, 1982:

63–64). To no avail, the Americans tried to argue that much of the debt had been used for the

purchase of food.

b).The court lacks jurisdiction to entertain this matter.

The court has no jurisdiction to entertain the issue of seizure of assets by the state of Rutasia.

This is in conformity with the terms of the climate agreement where it is clearly stipulated how

issues concerning the climate agreement shall be solved. To be precise the contract provides;

“Any dispute arising under the climate change Loan Agreement is to be submitted to binding

arbitration under the rules of international chamber of commerce. Moreover, all contracts for the

procurement of goods and services as part of the Alfurna climate change Remediation project

shall include similar arbitration provisions.”

As such any dispute regarding the climate shall be settled via arbitration.

Conclusion/Prayer for Relief

The State of Rutasia humbly requests the Court to adjudge and declare that:

Alfurna is no longer a state, and accordingly the Court lacks jurisdiction over Alfurna’s

claims; and in any event:

Rutasia has not violated international law in its treatment of the migrants from(former)

Alfurna and, in any event,

Alfurna is foreclosed from making claims with respect to those individuals because of its

failure to take availableaffirmative steps to protect them.

The Alfurnan migrants held in the Woeroma Centre are being treated in accordance with

Rutasia’s obligations under international law, and their proposed transfer to Saydee is

legal; and

Rutasia’s conduct in respect of Alfurna’s assets is also consistent with international law.

27

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