TEAM CODE: ‘E’IN THE INTERNATIONAL COURT OF JUSTICE AT THE PEACE PALACE, THE HAGUE, THE NETHERLANDS YEAR 2011 THE CASE CONCERNING CONFLICTING ORDERS OF THE COURTS OF BOLITA AND GARUNDI THE REPUBLIC OF BOLITA (APPLICANT) V. THE REPUBLIC OF GARUNDI (RESPONDENT) ON SUBMISSION TO THE INTERNATIONAL COURT OF JUSTICEWRITTEN SUBMISSION FOR THE RESPONDENT STATE- REPUBLIC OF GARUNDI- D. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION 2011
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
BODY OF ARGUMENTS MEMORIAL FOR THE RESPONDENT STATE
1D. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE I NTERNATIONAL MOOT COURT COMPETITION 2011
BODY OF ARGUMENTS
1 THE RESPONDENT STATE’S COURTS HAVE JURISDICTION AND THE
RESPONDENT STATE’S LAW IS THE APPLICABLE LAW TO DETERMINE
ROBERT’S CUSTODY ISSUE
It is humbly submitted that the Respondent State‟s law will govern Robert‟s custody dispute
overriding any private choice of law arrangement.1 Robert was born in the Respondent State
and his mother is a citizen and resident of the Respondent State.2
Place of conception of child
carries little weight in choice of law determination. 3 Instead the local law of the state which
has the most significant relationship to the child and the parent is considered.4
1.1 STATES HAVE JURISDICTION WITHIN THEIR TERRITORY AND APPLY
THEIR LAWS TO THEIR RESIDENTS
The principle corollaries of sovereignty
5
and equality of states are jurisdiction, prima facie
exclusive, over its territory and the population living there and a right of non-intervention
against other states in the area of its exclusive jurisdiction. 6 The territorial principle provides
1 R.R. v. M.H ., (Mass. 1998) 689 N.E.2d 790 at 793; Sonia Bychkov Green, “Interstate Intercourse: How Modern
Assisted Reproductive Technologies Challenge the Traditional Realm of Conflicts of Law” (2009) 24 Wis. J.L.Gender & Soc'y 25.2 Compromis ¶ 5.3 In re Adoption of Baby Boy S., 22 Kan. App. 2d 119, 126, 912 P.2d 761, rev. denied 260 Kan. 993, cert. denied
519 U.S. 870, 117 S. Ct. 185, 136 L. Ed. 2d 123 (1996).4 Compromis ¶ 4, 5; In the Interest of K.M.H., (2007) 169 P.3d at 1032.5 Lotus case, (1927) PCIJ, Series A No. 10 at 18; 4 AD, p. 153; Island of Palmas case (US/Netherlands), (1928)
2 RIAA at 829, 838. 6
United Nations Charter, Art 2 (7); Declaration on Principles of International Law Concerning FriendlyRelations and cooperation Among States, UNGA, 1970, 65 AJ (1971), 243; D. P. O‟Connell, International Law,2d. ed. (London: 1970) vol. 1 at 322 – 4; P. Kooijmans, The Doctrine of the Legal Equality of States, (Leiden:
1964); R. Y. Jennings and A. D. Watts, eds., Oppenheim’s International Law 9th
ed. (London: 1992) vol. 1 at339; M. S. Rajan, United Nations and Domestic Jurisdiction, 2d. ed, (London: 1961) Nguyen Quoc Dinh, P.Daillier and A. Pellet, Droit International Public, 7
BODY OF ARGUMENTS MEMORIAL FOR THE RESPONDENT STATE
2D. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE I NTERNATIONAL MOOT COURT COMPETITION 2011
jurisdiction based on concepts of allegiance or domicile.7 Mere presence within a state grants
jurisdiction to that state.8 A court has inherent jurisdiction derived from the principle of
parens patriae to make a custody order in respect of minors who are present within its
jurisdiction overriding even orders of courts of his domicile.9 Ordinary residence is another
criterion for jurisdiction.10
Habitual residence means a regular physical presence which must
endure for some time. It means something more than ordinary residence.11 If the court has
jurisdiction it will apply lex fori.12 In case of concurrent claims on behalf of persons having
dual nationality the claim of the State with genuine link prevails.13
In the instant case Robert has been resident in the Respondent State since his birth. He is not
only a citizen of the Respondent State but is also habitually resident and domiciled there. His
closest connection is with the Respondent State. It is the only environ he is acquainted with.
Consequently, it is humbly submitted that the Respondent State has jurisdiction over Robert‟s
custody dispute.
1.2 THE ECONOMIC UNION TREATY IS NOT APPLICABLE
It is humbly submitted that the Economic Union treaty is not applicable to the present child
custody issue. A treaty must be interpreted in good faith14, in accordance with the ordinary
7
Rainford, Boston and Graham v. Newell-Roberts, ILR 30, 106; Royal Exchange Assurance v. Compania Naviera Santi, SA ILR 33, 173; Colt Industries, Inc v. Sarlie, ILR 42 108; Malcolm N. Shaw, International
Law, 6th
ed. (Cambridge: Cambridge University Press, 2008) at 647.8 Re P (GE) (an infant), [1965] 3 ALL ER 977 (Court of Appeal); Heslop v. Heslop, (1958) 12 D.L.R. (2d) 591; Re Masterson, [1948] 2 D.L.R. 696; Maharanee of Baroda v. Wildenstein [1972] 2 All ER 689; See also the
Civil Jurisdiction and Judgments Act 1982.9 Re Willoughby, (1885) 30 Ch.D. 324 (C.A.); Re D., [1943] Ch. 305; McKee v. McKee, [1951] A.C. 352 (P.C.);
J.v. C. [1970] A.C. 668; Re P (GE), (an infant) [1965] Ch. 568 (C.A.); Re B.’s Settlement [1940] Ch. 54.10
Re P (GE), (an infant) [1965] Ch. 568 (C.A.); Scheffer v. Scheffer , [1967] N.Z.L.R. 466, 468; Re Walker and Walker , (1970) 14 D.L.R. (3d) 342; Re L.L.A., (1981) 25 R.F.L. (2D) 208; Holden v. Holden, [1968] V.R. 334.11
Cruse v. Chittum {1974] 2 ALL ER 940 (Family Division).12
Re B.’s Settlement [1940] Ch. 54; McKee v. McKee, [1951] A.C. 352 (P.C.); J.v. C. [1970] A.C. 668.13 Barcelona Traction, Light & Power Co. (Belg. v. Spain), [1970] I.C.J. Rep. 3 at ¶ 98.14
Vienna Convention on the Law of Treaties (May 23, 1969) U.N. Doc. A./CONF. 39/27 (1971), reprinted in 63 AM. J. INT'L L. 875, 876 (1969) Art 26 [Vienna Conv.]; Richard D. Kearney and Robert E. Dalton, “TheTreaty on Treaties” (1970) 64 Am. J. Int‟l Law 495 at 516.
BODY OF ARGUMENTS MEMORIAL FOR THE RESPONDENT STATE
3D. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE I NTERNATIONAL MOOT COURT COMPETITION 2011
meaning to be given to the terms of the treaty in their context and in light of their object and
purpose.15 It should be implemented in keeping with its object and purpose,16 in accordance
with the intentions17 and expectations of the signatories.18 The term „the context‟ envisages
that a provision that requires interpretation be illuminated by recalling what type of a treaty
this is.19
The principle of effectiveness20
cannot be used to attribute to the provisions a
meaning which would be contrary to their letter and spirit. 21 The object and purpose is the
effective implementation of friendship in the specific fields provided for in the Treaty, not
friendship in a vague general sense.22 Again, where substantial rights are at stake, the court
will be wary to fill-in an omission.23
At times ambiguity may be hidden in the plainest and simplest of words even in their
ordinary and natural meaning.24 The inquiry in all such cases is as to what was intended in the
treaty by the contracting powers.25 The words must be construed ejusdem generis.26 General
15Vienna Conv. Art 31; Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), [2007] I.C.J. Rep. ¶ 160 ff.; Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), [2002] I.C.J. Rep. at 625, 645 – 6; Kasikili/Sedudu
Island (Botswana/Namibia), [1999] I.C.J. Rep. at 1045; Territorial Dispute (Libyan Arab Jamahiriya/Chad),[1994] I.C.J. Rep. at 6, 21 – 2; Maritime Delimitation and Territorial Questions between Qatar and Bahrain(Qatar v. Bahrain), [1995] I.C.J. Rep. at 6, 18; See also R. Y. Jennings and A. D. Watts, eds., Oppenheim’s
International Law 9th
ed. (London: 1992) vol. 1 at 1271.16 LaGrand (Germany v. United States of America), [2001] I.C.J. Rep. ¶ 102; Gerald Fitzmaurice, “Reservations
to Multilateral Treaties”, (1953) 2 ICLQ 1 at 7– 8, 13 – 14; Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice (Cambridge: Grotius, 1986) at 207 – 9; Restatement Third, Foreign Relations Law
of the United States § 325(1).17 Ambatielos (Greece v. United Kingdom), [1952] I.C.J. Rep. at 28; Hersch Lauterpacht, “De l‟Interprétation
des Traités: Rapport et Projet de Résolutions”, (1950) 43 Annuaire de l‟Institut de Droit International at 366. 18 Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 180, 102 S. Ct. 2374, 28 Fair Empl. Prac. Cas.(BNA) 1753, 29 Empl. Prac. Dec. (CCH) P 32782 (1982).19
Oil Platforms (Islamic Republic of Iran v. United States of America), (Separate Opinion of Judge Higgins)[2003] I.C.J. Rep. at 225, 237.20 Fisheries Jurisdiction (Spain v. Canada), [1999] I.C.J. Rep. at 432, 455.21
Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, [1950] I.C.J. Rep. at 221, 226 – 30.22
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),[1986] I.C.J. Rep. at 137 ¶ 273.23
Valentine v. U.S. ex rel. Neidecker , 299 U.S. 5, 17, 57 S. Ct. 100 (1936) (extradition treaty with France didnot permit the President discretionary authority to surrender U.S. citizens).24
U.S. v. American Sugar Refining Co., 202 U.S. 563, 26 S. Ct. 717, 50 L. Ed. 1149 (1906); In re Zalewski's Estate, 292 N.Y. 332, 55 N.E.2d 184, 157 A.L.R. 87 (1944).25
Joseph T. Latronica, American Jurisprudence Treaties 2d. ed. 74 Am. Jur. § 24.
BODY OF ARGUMENTS MEMORIAL FOR THE RESPONDENT STATE
4D. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE I NTERNATIONAL MOOT COURT COMPETITION 2011
words near a specific list are not to be construed to their widest extent, but are to be held as
applying only to things of the same kind as those specifically listed. 27 It is humbly submitted
that read in its context the Treaty refers to disputes relating to purely economic matters.
1.2.1 S URROGACY CONTRACTS WERE NOT ENVISAGED BY EITHER OF THE PARTIES WHI LE
ENTERING INTO THE E U TREATY
A treaty should be interpreted by reference to the circumstances prevailing when the treaty
was concluded.28 The doctrine of rebus sic stantibus relieves states of obligations that are
unforeseeable results of a treaty.29
It must be recognized that even the clear provisions of a
treaty must not be given effect, or must receive appropriate interpretation, when, as a result of
modifications in international life, their application would lead to manifest injustice or to
results contrary to the aims of the institution.30
The concept of surrogacy is unknown in the Respondent State. Further, the E U treaty was
entered into in the year 1978 when the concept of surrogacy was was almost unknown
worldwide. The Respondent State and arguably the Applicant State entered into the E U
treaty without intent of its extending to surrogacy contracts.
1.3 IN THE ALTERNATIVE THE RESPONDENT STATE HAS NOT VIOLATED THE
E U TREATY
26 Case Concerning the Northern Cameroons (Cameroon v. United Kingdom), [1963] I.C.J. Rep. 15 at 91; Ian
Brownlie, Principles of Public International Law, 6th
ed. (Oxford: Oxford University Press, 2003) at 604.27 Cooper Distributing Co., Inc. v. Amana Refrigeration, Inc., (3d Cir. 1995) 63 F.3d 262.28
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guineaintervening), [2002] I.C.J. Rep. at 303, 346; Young Loan Arbitration (Belg. v. FRG), [1980] 59 ILR 495 at 544 – 5 Lithgow and Others v. the United Kingdom, European Court of Human Rights, Series A, No. 102, ¶ 117; D.W.Greig, Intertemporality and the Law of Treaties, (London: 2001).29 Suez, Sociedad General de Aguas de Barcelona S.A., Vivendi Universal S.A., AWG Group v Argentine
Republic, ICSID Case No. ARB/03/19; “Rebus Revisited: Changed Circumstances in Treaty Law” (2005) 43Colum. J. Transnat'l L. 459.30
Competence of the General Assembly for the Admission of a State to the United Nations, [1950] I.C.J. Rep. 4.
BODY OF ARGUMENTS MEMORIAL FOR THE RESPONDENT STATE
5D. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE I NTERNATIONAL MOOT COURT COMPETITION 2011
1.3.1 T HE E U TREATY DOES NOT PROVIDE FOR R ECOGNITI ON AND ENFORCEMENT OF EACH
OTHER ’ S COURT ORDERS SANS JURISDI CTION
A foreign judgment is recognized “when a court concludes that a certain matter has already
been” legitimately decided, whereas the judgment is enforced “when a party is accorded the
relief to which the judgment entitles him.”31
To be recognized and enforceable the right must have been created by the law of a law
district which had judicial jurisdiction in the international sense.32 It is essential that the
foreign court should have had jurisdiction, not in the sense of the foreign law, but in the sense
of the respondent state‟s rules of the conflict of laws.33 Generally, the domestic laws of a
recognizing country require proper notice, proper jurisdiction, final and binding judgment,
and no violation of public policy.34 Action will not lie upon an interlocutory order by a
foreign court.35 An ex parte decree passed by foreign Court is executable only if it is given on
merits of the case.36
It is humbly submitted that the Respondent State is willing to recognise and enforce orders of
the courts of the Applicant State provided these orders were not passed without jurisdiction.
31
Robert B. von Mehren & Michael E. Patterson, “Recognition and Enforcement of Foreign Judgments in theUnited States” (1972) at 16. 32
Deva Prasad Reddy v. Kamini Reddy, AIR 2002 KAR 356; Vishwanatha v. Abdul Wazid , AIR 1963 SC 1; Mohan Lal v. Prem Sukh, AIR 1956 Nag 273.33 Lawrence Collins, gen ed., Dicey and Morris on the Conflict of Laws, 11 th ed. (London: Stevens & Limited,
1987) at 421; see also Committee on Foreign and Comparative Law, Association of the Bar of the City of NewYork, Survey on Foreign Recognition of U.S. Money Judgments 5 (2001).34 Luke J. Umstetter , “Enforcing Foreign Judgments: In Search Of A Treaty To Locate Assets Abroad” (2007)
3 S.C. J. Int'l. L. & Bus. 85.35
Gauthier v. Routh (1843), 6 U.C.Q.B. (O.S.) 602 (C.A.); Sheehy v. Professional Life-Assurance Co. (1857),[FN2 C.B. (N.S.) 210]; affirmed [FN3 C.B. (N.S.) 597] (Ex. Ch.); see also Barned's Banking Co. v. Reynolds (1875), 36 U.C.Q.B. 256 (C.A.); Canada (Attorney General) v. Schulze (1901), [FN9 S.L.T. 4] (costs awarded by judgment in Canada on revenue case not recoverable in Scotland); Ruf v. Walter , [1990] 6 W.W.R. 661
(Sask. Q.B.) (costs enforceable if appearing in final judgment where all rights of parties determined).36 International Woollen Mills v. Standard Wool (U.K.) Ltd . (2001) 5 SCC 265, AIR 2001 SC 2134; Trilochan v.
Dayanidhi, AIR 1961 Ori 158; R.E. Mohd. Kassim and Co. v. Seeni Pakir-bin Ahmed AIR 1927 Md. 265.
BODY OF ARGUMENTS MEMORIAL FOR THE RESPONDENT STATE
6D. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE I NTERNATIONAL MOOT COURT COMPETITION 2011
1.3.2 R ESPECT AND COMITY FOR EACH OTHER ’ S LAWS DOES NOT IMPLY COMPLETE
ADOPTION APPLICANT S TATE ’ S LAWS
Comity is a discretionary act of accommodation by which a sovereign recognizes within its
territory the laws of a foreign sovereign, as long as that recognition does “not cause prejudice
to the power or rights of such government or of their subjects.”37
A sovereign does not
recognize foreign law within its territory because of any binding international obligation.38
Indeed, to have framed the concept would have been to restrict the sovereign's rights in a way
precisely in conflict with the premise of exclusive sovereign territorial power.39
It is humbly submitted that the E U Treaty governs only conflicts of law in respect of
economic matters. It does not imply that the Respondent State adopt all of the Applicant
State‟s laws and apply them even within her domestic sphere. Only when the Respondent
State finds the Applicant State‟s law to be the applicable law for a particular dispute, then the
E U treaty enables the Respondent State to apply such law to such dispute.
1.3.2.1 Refusal to enforce the surrogacy agreement does not amount to a violation of
the E U treaty
If both parties to an agreement had not intended that their agreement should be enforceable
by virtue of some legal system, it would not be a contract.40 Common intention is not inferred
easily.41 Law requires much more than a meeting of the minds when it comes to the
37 Hilton v. Guyot , (1895) 159 U.S. 113 at 202; Brown v. Gadson, 654 S.E.2d 179 (Ga. Ct. App. 2007); Ernest
G. Lorenzen, “Huber's De Conflictu Legum”, (1918) 13 Ill. L. Rev. 375 at 401; N. Jansen Calamita,
“Rethinking Comity: Towards A Coherent Treatment of International Parallel Proceedings”, (2006) 27 U. Pa. J.Int'l Econ. L. 601 at 611.38
Ernest G. Lorenzen, “Story's Commentaries on the Conflict of Laws –One Hundred Years After” (1934) 48Harv. L. Rev. 15; Joel R. Paul, “Comity in International Law”, (1991) 32 Harv. Int'l L.J. 1. 39 Joseph Story, Commentaries on the Conflict of Laws, 2d ed. (1841) § 23.40
BODY OF ARGUMENTS MEMORIAL FOR THE RESPONDENT STATE
7D. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE I NTERNATIONAL MOOT COURT COMPETITION 2011
disposition of a child.42 Further, for an agreement to be a contract its object must be lawful. 43
Even if a surrogacy agreement constitutes a valid contract, based on legal, equitable and
moral principles, it is not enforceable, because a parent cannot bargain away his/her child. 44
Children are not property and their delivery cannot be ordered as a contract remedy on the
same terms that a court would, for example, order a breaching party to deliver a truckload of
nuts and bolts.45 Thus, an agreement in which a woman agrees to become a surrogate or to
relinquish her rights and duties as parent of a child thereafter conceived through assisted
conception is unconscionable46 and void.47
Furthermore, rigid application of lex loci contractus leads to incongruities.48 Intention of the
parties is only one of the factors to be taken into consideration.49 The choice of foreign
jurisdiction and law is not effective in the Respondent State if there was no consensus ad
idem i.e. agreement as to choice of law, as per Respondent State‟s laws.50
It is considered dangerous51 to rely too much on the argument of ut res magis valeat quam
pereat which presumes that parties to a contract did not intend to be governed by a law by
42 Decker (Lowd) v. Decker , (2001) Oh. 2279; Seymour v. Stotski (1992), 82 Ohio App. 3d 87, 93, 611 N.E.2d
454; A.Z. v. B.Z., (Mass. 2000) 725 N.E.2d 1051.43
Indian Contract Act, 1872 sec 10.44
Jhordan C. v. Mary K ., (1986) 179 Cal. App. 3d 386, 224 Cal. Rptr. 530 ; In re Interest of R.C ., (Colo. 1989)
775 P.2d 27; Ferguson v. McKiernan, (Pa. Super. 2004) 855 A.2d 121, 2004 Pa. Super. 289, P6-P8.45 Johnson v. Calvert , (Cal. 1993) 851 P.2d 776 Id. at 797 (Kennard, J., dissenting); Dolgin, “Just a Gene:
Judicial Assumptions About Parenthood” (1993) 40 UCLA L.Rev. 637, 659. 46 J.F. v. D.B., (Pa. Ct. Comm. Pl. 2004) 66 Pa. D. & C. 4th 1, 10-32.47 R.R. v. M.H ., (Mass. 1998) 689 N.E.2d 790; Uniform Status of Children of Assisted Conception Act ,
Alternative B, § 5, 9B U.L.A. 208 (Master ed. Supp. 1997); In re Baby M , (N.J. 1988) 537 A.2d 1227; In re Marriage of Moschetta, 25 Cal. App. 4th 1218, 30 Cal. Rptr. 2d 893.48 Cook, Logical and Legal Basis of Conflict of Laws, (1942) Chap. 14 at 380-88; Falconbridge, Selected Essays
on the Conflict of Laws, 2d. ed. (1954) at 376-77; Wolff, Private International Law, 2d. ed. (1950) § 413;Lorenzen , Selected Articles on the Conflict of Laws, (1947) at 287-88; Rabel, Conflict of Laws: A ComparativeStudy, 2d. ed. (1958-64) vol 2 at 462.49
Case Concerning the Payment of Various Serbian Loans Issued in France , (1929) P.C.I.J., Ser. A, no. 20; Boissevain v. Wiel, [1949] 1 K.B. 482, 490 (C.A.); The Hollandia, [1983] 1 A.C. 565,576.50
Mackender v. Feldia A.G., [1967] 2 Q.B. 590,598 (C.A.).51Lawrence Collins, gen ed., Dicey and Morris on the Conflict of Laws, 11
BODY OF ARGUMENTS MEMORIAL FOR THE RESPONDENT STATE
8D. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE I NTERNATIONAL MOOT COURT COMPETITION 2011
which their agreement would be invalid and has thus been rejected.52 Parties by choice of law
cannot give validity to an agreement that is illegal and void. 53 Whatever be the proper law, a
contract the performance of which is illegal according to lex loci solutionis will not be
enforced by its courts.54
The doctrine of forum non conveniens55 provides jurisdiction on considerations of
convenience, fairness, and judicial economy.56 In the instant case the the subject matter of the
contract was Garundian and the whole transaction contemplated by the contract concerned
activities of a Garundian national, Janet.57
Consequentially, the Respondent State has
jurisdiction over such transaction.
A. PUBLIC POLICY OF THE R ESPONDENT STATE IS APPLICABLE WITHIN ITS TERRITORIAL
SOVEREIGNTY
The correct interpretation of a treaty on private international law must take into account the
recognition of the principle of order public as applied locally.58
The contracting States
despite treaty obligations retain the right to enforce restrictions required by ordre public.59
It
must be understood as containing an implied reservation authorizing, on the ground of public
policy, to overrule the application of the foreign law even if it is recognized as the proper
52 Etler v. Kertesz , (1960) 26 D.L.R. (2D.) 209, 222; Lindsay v. Miller , [1949] V.L.R. 13, 15.
53Cook, Logical and Legal Basis of Conflict of Laws, (1942) at 427; Falconbridge, Selected Essays on the
Conflict of Laws, 2d. ed. (1954) at Chap. 16.54 Ralli Bros v. Compania Naviera Sota y Aznar, [1920] 2 K.B. 287 (C.A.).55
Gilbert v. Gulf Oil Co, 330 U.S. at 507; Canada Malting Co. v. Paterson Steamships, Ltd . (1932) 285 U.S.413, 422; Piper Aircraft Co. v. Reyno, 454 U.S. 235, 253 (1981); American Dredging Co. v. Miller , (1994) 510U.S. 443, 449 n. 2.56
La Société du Gaz de Paris v. Société Anonyme de Navigation “Les Armateurs Français”, [1925] 23 Lloyd'sList. Rep. 209, 213 (Sess.); Malaysia Int'l Shipping Corp. v. Sinochem Int'l Co. Ltd.,(3d Cir.2006) 436 F.3d 349.57 Coast Lines Ltd. v. Hudig & Veder Chartering NV , [1972] 2 QB 34, [1972] 1 ALL ER 451; J. H. C. Morris
and P. M. North, eds., Cases and Materials on Private International Law, (London: Butterworths, 1984) at 67.58
Case Concerning The Application Of The Convention Of 1902 Governing The Guardianship Of Infants(Netherlands v. Sweden), [1958] I.C.J. Rep. 55 at 91 (Separate Opinion Of Judge Sir Hersch Lauterpacht), 74-78(Separate Opinion of Judge Badawi), 102-09 (Separate Opinion of Judge Moreno Quintana).59 Case Concerning The Application Of The Convention Of 1902 Governing The Guardianship Of Infants
(Netherlands v. Sweden), [1958] I.C.J. Rep. 55; see also Committee of United States Citizens Living in Nicaragua v. Reagan case (1988) 859 F.2d 929 at 939; Tag v. Rogers (1959) 267 F.2d 664, 666; US v. Yunis(No. 3) (1991) 724 F.2d 1086, 1091.
BODY OF ARGUMENTS MEMORIAL FOR THE RESPONDENT STATE
9D. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE I NTERNATIONAL MOOT COURT COMPETITION 2011
law.60 Moreover, national legislation is „on full parity‟ with a treaty, so that a later statute
would render an earlier treaty null to the extent of any conflict.61
The parties are at liberty to select the proper law of their contract, provided the choice is bona
fide and legal and provided there is no reason for avoiding the choice on the ground of public
policy.62 Courts have on considerations of public policy and morality refused to enforce a
contract. 63 It seems „absurd‟ to enforce a contract against public policy, simply because it
happens to have been made somewhere else. 64
The state has a compelling interest in forbidding surrogacy agreements
65
to (1) prevent
children from becoming commodities; (2) protect the best interests of the child, which are not
preserved by surrogacy agreements; and (3) prevent the exploitation of women.66
Overriding
even a choice of law clause surrogacy agreements have been held as contrary to public policy
and thus not enforceable.67 The conception of a child for relinquishment after birth poses
60 Case Concerning The Application Of The Convention Of 1902 Governing The Guardianship Of Infants
(Netherlands v. Sweden), [1958] I.C.J. Rep. 55 at 72 (Declaration of Judge Spiropoulos).61 Breard v. Greene, (1998) 140 L.Ed. 2d 529; People of Saipan ex rel. Guerrero v. United States Department of
Interior (1974) 502 F.2d 90; Association of Lawyers for Peace and Four Other Organizations v. State of the Netherlands, Nr C02/217HR; LJN: AN8071; NJ 2004/329.62 Vita Food products Inc. v. Unus Shipping Co. Ltd., [1939] AC 277, [1939] 1 ALL ER 513 (Privy Council);
Kay’s Leasing Corp. Pty. Ltd. v. Fletcher, (1964) 116 C.L.R. 124; Golden Acres Ltd. v. Queensland Estates Pty. Ltd., [1969] St. Robert. Qd.378.63
Case Concerning The Application Of The Convention Of 1902 Governing The Guardianship Of Infants(Netherlands v. Sweden), [1958] I.C.J. Rep. 55 (Separate Opinion Of Judge Sir Hersch Lauterpacht); Balfour v.
Balfour , (1919) 2 KB 571; Ratan Chand Hirachand v. Aksar Nawaz Jung, (1991) 3 SCC 67; Jaipur Development Authority v. Daulat Mal Jain (1997) 1 SCC 35; The EEC Convention on the Law Applicable to
Contractual Obligations, Art. 16; Cheshire, Fifoot and Furmston, Law of Contract , 11th
ed., (1986) Chaps. 11and 12.64 Rousillon v. Rousillon, (1880) 14 Ch. D. 351, 369; Greenshields Inc. v. Johnston (1981) 119 D.L.R. (3rd) 714.65
A significant minority of States have legislation addressing surrogacy agreements. Some simply denyenforcement of all such agreements. See Ariz. Rev. Stat. Ann. § 25-218(A) (West 1991); D.C. Code Ann. § 16-402(a) (1997); Ind. Code Ann. § § 31-20-1-1, 31-20-1-2 (Michie 1997); Mich. Comp. Laws Ann. § 722.855
(West 1993); N.Y. Dom. Rel. Law § 122 (McKinney Supp. 1997), N.D. Cent. Code § 14-18-05 (1991); UtahCode Ann. § 76-7-204 (1995). Others expressly deny enforcement only if the surrogate is to be compensated.See Ky. Rev. Stat. Ann. § 199.590(4) (Michie 1995); La. Rev. Stat. Ann. § 9:2713 (West 1991); Neb. Rev. Stat.§ 25-21,200 (1995); Wash. Rev. Code § § 26.26.230, 26.26.240 (1996).66 Doe v. Attorney Gen., (Mich. Ct. App. 1992) 487 N.W.2d 484 at 486, 487.67
R.R. v. M.H ., 689 N.E.2d 790 (Mass. 1998); Matter of Baby M., (1988) 109 N.J. 396, 537 A.2d 1227; Brownv. Gadson, (Ga. Ct. App. 2007) 288 Ga. App. 323, 323-325, 654 S.E.2d 179; J.F. v. D.B., (Pa. Ct. Comm. Pl.2004) 66 Pa. D. & C. 4th 1, 10-32; Radin, “Market-Inalienability” (1987) 100 Harv.L.Rev.1849, 1924; Capron
BODY OF ARGUMENTS MEMORIAL FOR THE RESPONDENT STATE
10D. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE I NTERNATIONAL MOOT COURT COMPETITION 2011
grave ethical problems.68 As a matter of public policy the state will not enforce or encourage
private agreements or contracts to give up parental rights.69
B.
BEST I NTERESTS OF CHILD
The guiding principle of child custody is the best interests of the child.70
No private
agreement concerning custody can be conclusive as the determining factor is the best
interests of the child.71 A contract cannot determine the best interests of a child.72 The welfare
of the minor is the paramount consideration to which all others must yield, including the
order of a foreign court of competent jurisdiction.73 Gestational surrogacy is
“dehumanizing”74
and “commodifies”75
women and children.76
This will reinforce oppressive
gender stereotypes and threaten the well-being of all children.77
It is humbly submitted that as Robert has lived continuously in the Respondent State it is in
his best interests that jurisdiction and applicable law be granted to the Respondent State.
& Radin, “Choosing Family Law Over Contract Law as a Paradigm for Surrogate Motherhood , in SurrogateMotherhood”, (1990) Gostin edit. 72 at 62, 63; Krimmel, “Can Surrogate Parenting Be Stopped? An Inspection
of the Constitutional and Pragmatic Aspects of Outlawing Surrogate Mother Arrangements” (1992) 27Val.U.L.Rev. 1, 4-5.68 Johnson v. Calvert , (Cal. 1993) 851 P.2d 776 at 793; “Magisterium of the Catholic Church, Instruction on
Respect for Human Life in Its Origin and on the Dignity of Procreation: Replies to Certain Questions of theDay” 25 (Feb. 22, 1987), cited in Radin, “Market-Inalienability” (1987) 100 Harv.L.Rev.1849, fn. 271. 69 Belsito v. Clark (1994), 67 Ohio Misc. 2d 54, 644 N.E.2d 760 citing; Ingram, “Surrogate Gestator: A New
and Honorable Profession” (1993), 76 Marquette L.Rev. 675; Seymour v. Stotski (1992), 82 Ohio App.3d 87,611 N.E.2d 454; Dawn Wenk, “Belsito v. Clark: Ohio's Battle with „Motherhood‟” (1996) 28 U. Tol. L. Rev.247.70
Mich. Comp. Laws § 722.23; Mich. Stat. Ann. § 25.312(3); Avi Katz, “Surrogate Motherhood and the Baby-
Selling Laws” (1986) 20 COLUM.J.L. & SOC. Probs. 1, 23. 71 R.R. v. M.H ., (Mass. 1998) 689 N.E.2d 790; Johnson v. Calvert , (Cal. 1993) 851 P.2d 776 Id. at 789, 799-800
(Kennard, J., dissenting).72 Baby M , (N.J. 1988)537 A.2d 1227, 1240 at 1246.73 McKee v. McKee, [1951] AC 352 (Privy Council); Re E (D) (an infact), [1967] Ch 761 (Court of Appeal); Re
L (Minors), [1974] 1 ALL ER 913 (Court of Appeal).74
Capron & Radin, “Choosing Family Law Over Contract Law as a Paradigm for Surrogate Motherhood , inSurrogate Motherhood”, (1990) Gostin edit. 72 at 62. 75
Macklin, “Artificial Means of Reproduction and Our Understanding of the Family,” 21 Hastings Center Rep.5, 10.76
Radin, “Market-Inalienability” (1987) 100 Harv.L.Rev.1849, 1930-1932; Goodwin, “Determination of LegalParentage in Egg Donation, Embryo Transplantation, and Gestational Surrogacy Arrangements” (1992) 26Fam.L.Q. 275, at p. 283.77
“Developments in the Law: Medical Technology and the Law,” (1990) 103 Harv.L.Rev.1519, 1550; Mary Becker, “Four Feminist Theoretical Approaches and the Double Bind of Surrogacy” (1994) 69 Chi. -Kent. L.Rev. 303, 308.
BODY OF ARGUMENTS MEMORIAL FOR THE RESPONDENT STATE
12D. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE I NTERNATIONAL MOOT COURT COMPETITION 2011
acquires a domicile of choice elsewhere.84 The burden of proving a change of domicile is a
very heavy one and rests on the claimant.85
In the alternative, Jane‟s decision
86
to continue to stay in Garundi with Emily shows her
intention87 to reside in Garundi indefinitely. A person abandons a domicile of choice in a
country by ceasing to reside there and by ceasing to intend to reside there permanently or
indefinitely.88 It is sufficient to prove merely the absence of an intention to continue to
reside.89 The domicile of origin revives on abandonment of domicile of choice. 90
Alternatively, Jane acquires a new domicile in Garundi. A new domicile is acquired when
there is not only an intention of establishing a permanent or indefinite residence in some
other country, but has also been carried out by actual residence there. 91 A person can acquire
a domicile in a country if he has the necessary intention, after residence for even part of a
day.92 It is sufficient if he lives in a hotel93 or in the house of a friend94 or even in a military
camp95
.
A child may acquire a domicile of choice by the act of one of his parents. 96 Domicile of a
child is at the place with which he is most closely connected.97
If the parents have different
84 Vincent v. Buchan (1889) 16 R. 637; Grant v. Grant , 1931 S.C. 238.
85 Bell v Kennedy [1868] L.R. 1 Sc. & Div.307, 310,319; Winans v Att. Gen. [1904] A.C.287; Ramsay v
Liverpool Royal infirmary [1930] A.C. 588; In the Estate of Fuld (no 3) [1968] P.675, 685.86 Compromis ¶ 9.87
Bell v Kennedy [1868] L.R. 1 Sc. & Div.307, 319.88 Udny v Udny [1869] L.R. 1 Sc. & Div 441,450; I.R.C. v Duchess of Portland [1982] Ch.314.89 Re Flynn (No. 1) [1968] 1 W.L.R.103, 113-115.90
Udny v. Udny [1869] L.R. 1 Sc. & Div 441; Tee v Tee [1974] 1 WLR 213 at 215-216; Wade [1983] 32 ICLQ1 at 12 et seq.91 David McClean, ed., Morris: The Conflict of Laws, 4th ed. (London: Sweet & Maxwell, 1993) at 18.92
White v Tennant [1888] 31 W.Va. 790, 8 S.E. 596; Miller v Teale [1954] 92 C.L.R. 406. (See the LawCommission's confirmation of the policy behind this rule: Law of Domicile, para 5.7).93
Levene v. I.R.C. [1928] A.C. 217; I.R.C. v Lysaght [1928] A.C.234; Matalon v Matalon [1952] at 233.94
Stone v Stone [1958] 1 W.L.R. 1287.95 Willar v Willar [1954] S.C.144.96
In re J.D.M.C ., 2007 SD 97 (S.D. 2007); P.M. North and J.J.Fawcett eds. Cheshire and North’s Private International Law, 13
thed. (LexisNexis Butterworths: New Delhi, 1999) at 154.
97 Domicile Act 1992, No. 3 of 1992, South Africa, s 2(1).
BODY OF ARGUMENTS MEMORIAL FOR THE RESPONDENT STATE
13D. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE I NTERNATIONAL MOOT COURT COMPETITION 2011
domiciles due to their separation or any other reason, a child‟s domici le will be that of the
parent with whom he resides.98 Thus, Emily is domiciled in the Respondent State.
Additionally, Courts have jurisdiction if either of the parties are citizens of that country or
permanent or temporary residents of that country.99 Moreover, mere presence within a state
grants jurisdiction to that state.100 A court has inherent jurisdiction derived from the principle
of parens patriae to make a custody order in respect of minors who are present within its
jurisdiction.101
2.2
IN THE ALTERNATIVE, THE STATE IN WHICH THE CHILD IS HABITUALLY
RESIDENT IS BEST SUITED TO DETERMINE MATTERS PERTINENT TO THE
CHILD‟S CUSTODY
A person's domicile depends to such an extent on proof of his intention, that only often it is
impossible to identify it with certainty without recourse to the courts.102 Nationality is
objectionable
103
as a criterion to determine the personal law.
104
It may point to a country with
which the person in question has lost all connection or has never been connected105
or the
person may be stateless or may simultaneously be a citizen of two or more countries.106 The
98 In re J.D.M.C ., 2007 SD 97 (S.D. 2007); Domicile and Habitual Residence Act , SM 1983, C.C.S.M. c. D96,
Manitoba, s 9(1)(a).99
Vellachi Achi v. Ramnathan, AIR 1973 Mad 141.100 Re P (GE) (an infant), [1965] 3 ALL ER 977 (Court of Appeal); Heslop v. Heslop, [1958] 12 D.L.R. (2d)
591; Re Masterson, [1948] 2 D.L.R. 696; Maharanee of Baroda v. Wildenstein [1972] 2 All ER 689; See alsothe Civil Jurisdiction and Judgments Act 1982 (U.K.), 1982, c. 27.101 Re Willoughby, [1885] 30 Ch.D. 324 (C.A.); Re D., [1943] Ch. 305; McKee v. McKee, [1951] A.C. 352
(P.C.); J.v. C. [1970] A.C. 668; Re P (GE), (an infant) [1965] Ch. 568 (C.A.); Re B.’s Settlement [1940] Ch. 54.102
P.M. North, Private International Law of Matrimonial Causes in the British Isles and the Republic of Ireland (1977) at 10-15; P.M. North and J.J.Fawcett eds. Cheshire and North’s Private International Law, 13th ed.
(LexisNexis Butterworths: New Delhi, 1999) at 161.103
P.M. North and J.J.Fawcett eds. Cheshire and North’s Private International Law, 13th
ed. (LexisNexisButterworths: New Delhi, 1999) at 161.104
P.M. North, Private International Law of Matrimonial Causes in the British Isles and the Republic of Ireland (1977) at 9-10; Law Com No 168 (1987), Scot law Com No 107 (1987) ¶¶ 3.10-3.11.105
P.M. North and J.J.Fawcett eds. Cheshire and North’s Private International Law, 13th
ed. (LexisNexisButterworths: New Delhi, 1999) at 160.106
Totok v Torok [1973] 3 All ER 101, (1973) 1 WLR 1066.
BODY OF ARGUMENTS MEMORIAL FOR THE RESPONDENT STATE
14D. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE I NTERNATIONAL MOOT COURT COMPETITION 2011
application of the concept of nationality in such circumstances will lead to eccentric
decisions.107
Habitual residence of the child as a determinant of jurisdiction and applicable law as referred
to in the Hague Conference‟s conventions has been influential in establishing customary
norms.108 Purely domestic legislation has also adopted habitual residence as a major
connecting factor in matrimonial jurisdiction.109
2.2.1 E MILY ’ S HABI TUAL RESIDENCE IS THE R ESPONDENT S TATE
Residence for an appreciable period of time sufficient for acclimatization, with a degree of
settled purpose from the child‟s perspective110 and a settled intention to reside on a long term
basis are needed for acquisition of a new habitual residence.111
Where a child‟s habitual
residence cannot be established, the courts may exercise jurisdiction on the basis of the
child‟s presence.112 There is no need to show a person intended to stay there permanently or
107 Re O' Keefe [1940] Ch 124, (1940) 1 All ER 216; Re Johnson [1903] 1 Ch 821.108
Peter Pfund, “The Hague Conference Celebrates Its 100th Anniversary” (1993) 28 Tex. Int'l L.J. 531; WillisReese, “The Hague Conference on Private International Law: Some Observations” (1985) 19 Int'l Law 881; Domicile and Matrimonial Proceedings Act 1973 (U.K), 1973 c.45, ss. 5,6; Family Law Act 1986 (U.K.), 1986
c. 55, Parts I and III; Child Support Act 1991 (U.K.), 1991 c. 48, s 44(1); EC, Convention of 1998 on Jurisdiction and the Recognition and Enforcement of Judgments in the Matrimonial Matters ( Brussels II),[1998] OJ C221/2; Nessa v Chief Adjudication Officer (1998) 2 All ER 728 at 737, CA (Comments of ThorpeLJ); de Winter (1969) III Hague Recueil 357, 419-454; Cavers (1972) 21 Am ULR 475.109
Wills Act 1963 (U.K.),1963, c. 44; Adoption Act 1976 (U.K.), 1976, c. 36; Child Abduction and Custody Act 1985 (U.K.), 1985 c. 60; Family Law Act 1986 (U.K.), 1986 c. 55; Contracts (Applicable Law) Act 1990 (U.K),
1990 c. 36; EC, Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, [1996] O.J. L 48/3 (also makes extensive use of habitual residence); Domicile and Matrimonial Proceedings Act 1973 (U.K),
1973 c.45, ss 5,6; Family Law Act 1986 (U.K.), 1986 c. 55, Parts I and III; Child Support Act 1991 (U.K.), 1991c. 48, s 44(1); EC, Convention of 1998 on Jurisdiction and the Recognition and Enforcement of Judgments inthe Matrimonial Matters ( Brussels II), [1998] OJ C221/2, (uses habitual residence as an alternative connecting
factor for jurisdiction), Nessa v Chief Adjudication Officer (1998) 2 All ER 728 at 737, CA (Comments of Thorpe LJ).110
Feder v. Evans-Feder , 63 F.3d 217 (3d Cir. 1995)111
Re J (A Minor) (Abduction: Custody Rights), (1990) 2 AC 562; distinguised in Re S (A Minor) (Custody;Habitual Residence) ( 1998) AC 750, HL112
EC, Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and therecognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility ,[2003] O.J. L 338, p. 1.
BODY OF ARGUMENTS MEMORIAL FOR THE RESPONDENT STATE
15D. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE I NTERNATIONAL MOOT COURT COMPETITION 2011
indefinitely.113 The settled intention can be for a limited period.114 The habitual residence of a
child is not fixed but may change according to the circumstances of the parent.115 A father
can, consent to the child‟s being with the mother and lead to change of habitual residence. 116
Moreover one parent may take no step to prevent the other parent from changing the child's
home, which over a period, may amount to acquiescence.117
If a child has been living with its
mother even in defiance of a court order to return the child it would take the same habitual
residence as the mother.118
2.2.2 T HE APPLICANT S TATE CANNOT CLAIM JURISDICTION ON THE BASIS OF “W RONGFUL
REMOVAL OR RETENTION ”
Hague conventions119 apply as between Contracting States only to wrongful removals or
retentions occurring after its entry into force in those states. 120 The Hague conventions do not
apply unless both states are signatories. 121 Moreover, proof of custom in international law122
requires state practice and opinio juris sevi necessitates.123
The burden of proof rests on the
113 Re B (Minors) (Abduction), (No.2) [1993] 1 FLR 993; M v M (Abduction: England and Scotland ), [1997] 2
FLR 263 at 274 (per Millet LJ)114
M v M (Abduction: England and Scotland), [1997] 2 FLR 263 CA; Moran v Moran, [1997], SLT 541.115
Re M (Minors) (Residence Order: Jurisdiction), [1993] 1 FLR 495 at 500, CA; Re A (Abduction: Habitual Residence), [1998] 1 FLR 497 at 503; Re G (A Minor) (Enforcement of Access Abroad), [1993] Fam 216, CA;
Re B (Minors) (Abduction), (No 2) [1993] 1 FLR 993.116 Re F (A Minor) (Child Abduction), [1992] 1 FLR, 548, CA.117
Re F (A minor) (Child Abduction), [1992] 1 FLR 548 at 556-557, CA; See also Robertson v Roberston, [1998] SLT 468; Sing v Singh [1998] SLT 1084.118 Re B (Abduction: Children's Objections), [1998] 1 FLR 667 at 671; Clive, [1997], Jur Rev 137 at 145.119
Hague Conference on Private International Law, Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Hague XXVIII; EC, Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and
Measures for the Protection of Children, [1996] O.J. L 48/3. 120
Hague Conference on Private International Law, Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Hague XXVIII, Art. 35.121
Moshen v. Moshen 715 F. Supp. 1063 (D. Wyo. 1989); Koons v. Koons 615 N.Y.S.2d 563 (Sup. Ct. 1994).122 Jenks, The Prospects of International Adjudication (1964) at 226.123
Statute of the ICJ (1945), Art. 38(1)(b), T.S. No. 993, 59 Stat. 1055; Continental Shelf Case (Libya v Malta),[1985] ICJ Rep 13; Maurice Mendelson, “The Subjective Elements in Customary International Law” (1995) 76BYIL 179.
BODY OF ARGUMENTS MEMORIAL FOR THE RESPONDENT STATE
16D. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE I NTERNATIONAL MOOT COURT COMPETITION 2011
claimant.124 It is humbly submitted that in the instant case neither can be established with
respect to „wrongful removal or retention.‟
2.2.3
ARGUEDO , EM I LY HAS NOT BEEN “W
RONGFULLY REMOVED OR RETAINED ”
The State wherefrom the child has been wrongfully retained cannot claim jurisdiction when
the other parent had consented to or subsequently acquiesced in the removal or retention.125
Consent must be inferred from John‟s acquiescence and inaction.126 One parent may take no
step to prevent the other parent from changing the child's home, which over a period, may
amount to acquiescence.127
Moreover, a specific demand for Emily‟s return was never
made.128 It is humbly submitted that Emily has not been wrongful removed or retained.
Consequentially, jurisdiction and applicable law to determine Emily‟s custody lies with the
state of her habitual, ordinary and mere residence, Respondent State.
2.3 IT IS IN EMILY‟S BEST INTERESTS THAT THE RESPONDENT STATE
EXERCISE JURISDICTION AND HER APPLICABLE LAW
The welfare of the minor is the paramount consideration to which all others must yield,
including the order of a foreign court of competent jurisdiction. 129 Notwithstanding the
conduct of the „kidnapper‟ courts can exercise jurisdiction if it is in the best interests of the
child.130 Best interests of children are that they remain where they are.131 It is humbly
124 The Lotus case, (1927) PCIJ Ser. A no. 10 at 18.
125The Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, [1996] O.J. L
48/3; Organization of American States, Inter-American Convention on the International Return of Children, 15July 1989, OAS, Treaty Series, No. 70, Art. 4.126 Falls v. Downie, p 871 F. Supp. 100 (D. Mass. 1994) (A child was found to have settled with his mother‟s
consent indefinitely in the U.S)127
Re F (AMinor) (Child Abduction) [1992] 1 FLR 548 at 556-557, CA; See also Robertson v Roberston [1998]SLT 468; Sing v Singh [1998] SLT 1084.128
Compromis ¶ 6, 7, 8, 9.129 McKee v. McKee, [1951] AC 352 (Privy Council); Re E (D) (an infact), [1967] Ch 761 (Court of Appeal); Re
L (Minors), [1974] 1 ALL ER 913 (Court of Appeal).130 McKee v. McKee, [1951] AC 352 (Privy Council); Re E (D) (an infact), [1967] Ch 761 (Court of Appeal); Re
BODY OF ARGUMENTS MEMORIAL FOR THE RESPONDENT STATE
18D. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE I NTERNATIONAL MOOT COURT COMPETITION 2011
3 THE RESPONDENT STATE HAS NO INTERNATIONAL OBLIGATION TO
EXTRADITE JANE AND JANET
3.1
THERE IS NO INTERNATIONAL OBLIGATION TO EXTRADITE IN ABSENCE
OF EXPRESS TREATY TO THAT EFFECT
In the absence of a treaty obligation there exists no duty to extradite alleged criminals under
international law.136 In such cases, extradition usually is effected by non-binding
consideration of reciprocity.137 States can only act on the territory of other States if there is
permission to this effect in international law.
138
Furthermore, the only crimes that might cause the obligation to extradite under customary
international law are international crimes,139 such as genocide, crimes against humanity, war
crimes and the crime of aggression.140 These crimes, if wide-spread and systematic, are of
concern to the international community as a whole.141 Jane and Janet have not committed any
such international crime. Consequently, the Respondent State is under no obligation to
extradite them.
136 Questions of Interpretation and Application of 1971 Montreal Convention Arising from Aerial Incident at
Lockerbie (Lib. v. U.K.), [1992] I.C.J. Rep. 3, 24 ; A. Watts & R. Jennings, eds., Oppenheim's International Law (1992) at 950; Wise, “The Obligation to Extradite or Prosecute” (1993) 27 Isr. L. Rev. 282; Best Swart,
“Refusal of Extradition” (1992) Netherlands Yearbook Int'l L. 23, 214; Stein, “Rendition of Terrorists:Extradition versus Deportation” (1989) Isr'l Yearbook Int'l L. 79, 282. 137
Bassiouni, “Reflections on International Extradition” in Festschrift Fur Otto Triffterer, K.Schmoller, ed.(1996) at 727; William Hannay, “International Terrorism and the Political Offence Exception to Extradition”(1979) 18 Colum. J. Transnat'l L. 383.138
J. Brown, “Diplomatic Immunity: State Practice under the Vienna Convention on Diplomatic Relations”(1988) 37 ICLQ ¶ 49; Case Concerning The Arrest Warrant Of 11 April 2000 (Democratic Republic Of TheCongo v. Belgium) [2002] I.C.J. Rep. 3 at 181.139
Bassiouni, “Reflections on International Extradition” in Festschrift Fur Otto Triffterer, K.Schmoller, ed.(1996) at 729.140
Rome Statute of the International Criminal Court , (1998) 37 I.L.M. 999, arts. 5, 6, 7, 8; Secretary-General's Report on Aspects of Establishing An International Tribunal for the Prosecutions of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia,
(1993) 32 I.L.M. 1159, arts. 4, 5; Security Counsel Resolution Establishing the International Tribunal for Rwanda, (1994) 33 I.L.M. 1598, arts. 2, 3.141
Rome Statute of the International Criminal Court , (1998) 37 I.L.M. 999 at prmbl.
BODY OF ARGUMENTS MEMORIAL FOR THE RESPONDENT STATE
19D. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE I NTERNATIONAL MOOT COURT COMPETITION 2011
Additionally, under customary international law, States do not have to extradite their own
nationals.142 This is evidenced by the fact that many States have provided not to extradite
their own citizens in their constitutions and national legislations143 and by inclusion of a
clause allowing to deny extradition of nationals in international legal instruments.144
Finally, according to the principle aut dedere aut judicare, a State not extraditing an accused
person has to “submit the case to its competent authorities for the purpose of prosecution.”145
It is humbly submitted that since nothing in the Compromis points to the Respondent State‟s
unwillingness to investigate or to prosecute, the Respondent State has the option to prosecute
and is under no obligation to extradite.
3.2 THE ECONOMIC UNION TREATY IS NOT APPLICABLE TO CRIMINAL
PROCEEDINGS
It is humbly submitted that the Economic Union treaty is applicable to only economic matters
and does not extend to criminal proceedings. Interpretation of a treaty cannot lead to
conclusions at odds with its object and purpose.146
It would be inconsistent not only with the
wording of the Treaty, but also with its object, its purpose, its context, and the will of the
142 Geoffrey Freestone, “Cooperation Against Terrorism” , in Terrorism and International Law, R. Higgins et. al.
eds. (1997) at 46; Vieira, “L'Evolution Recente de l'Extradition dans le Continent Americain” (1984 -II) 185Rd.C. 236.143 Ivan Anthony Shearer, Extradition in International Law, (1971) at 102; Vieira, “L'Evolution Recente de
l'Extradition dans le Continent Americain” (1984-II) 185 Rd.C. 236, 238; A. Watts & R. Jennings, eds.,Oppenheim's International Law (1992) at 955.144 European Convention on Extradition, Council of Europe, (Dec. 13, 1957) 359 U.N.T.S. 278 at art.6/1(a);
Treaty Concerning Extradition (Belg.-Lux.-Neth.), (Jun. 27, 1962) available at http://www.consilium.eu.int/ejn/;Treaty on Extradition (U.S.-Mex.), (Dec 11, 1861) available at http://www.yale.edu/lawweb/avalon/avalon.htm; Model Treaty on Extradition, (1990) art.4(a), G.A.Res. 45/116, U.N. GAOR, 45th Sess., U.N. Dec.,A/RES/45/116; Inter-American Convention on Extradition, (Feb. 25, 1981) 20 I.L.M. 724, art. 7.145 G.A. Res. 39/46, 39; U.N. GAOR, 39th Sess., Supp. No. 51 at 197, U.N. Doc. A/39/51 (1985); Convention
Relative to the Protection of Civilian Persons in Time of War , (Aug. 12, 1949) 75 U.N.T.S. 287; AntonioCassese, “The International Community's „Legal‟ Response to Terrorism” (1989) 38 Int'l & Comp. L. Q. 593. 146
BODY OF ARGUMENTS MEMORIAL FOR THE RESPONDENT STATE
20D. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE I NTERNATIONAL MOOT COURT COMPETITION 2011
parties.147 Likewise, the provision of recognition and enforcement of orders of each other‟s
courts cannot be read to include enforcement of arrest warrants. 148 There is always a need for
a validation by the authorities of the State where the person mentioned in the warrant is
found.149 Arrest warrants issued by courts of a country do not receive automatic
implementation in third states.150
Member states of the European Union are not required to
take into account a conviction from another member state if: a national conviction would
have been possible for the same conduct or the sanction is unknown to the national legal
system.151 Neither can comity or respect for each other laws be extended to impose a binding
legal obligation on the Respondent State to adhere to all the laws of the Applicant State. 152
Comity is restricted by international duty and convenience, and the rights of citizens or of
other persons who are under the protection of the State‟s laws.153
It is humbly submitted that treaty obligations are reciprocal and if such interpretation is
allowed then the Applicant State is under a legal obligation to adhere to all the domestic laws
of the Respondent State. Consequentially, the Applicant State is bound by the Respondent
State‟s laws that do not provide for such extradition.
147 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), [2008] I.C.J. Rep. at ¶ 101;
Oil Platforms (Islamic Republic of Iran v. United States of America), [1996] I.C.J. Rep. at 814¶ 28; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), [1986] I.C.J. Rep. at137 ¶ 273.148
See Above § 1.3.1.149 Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic Of The Congo v. Belgium)
[2002] I.C.J. Rep. 3 at 181.150 Interpol, General Secretariat, Rapport sur la valeur juridique des notices rouges, ICPO-Interpol, GeneralAssembly, 66th Session, New Delhi, 15-21 October 1997, AGN/66/RAP/8, No. 8 Red Notices, as amended
pursuant to resolution No. AGN/66/RES/7; Case Concerning the Arrest Warrant Of 11 April 2000 (Democratic Republic of the Congo v. Belgium) [2002] I.C.J. Rep. 3 at 182 (Dissenting opinion of Judge Van DenWyngaert).151
Council Framework Decision on Taking Account of Convictions in the Member States of the EuropeanUnion in the Course of New Criminal Proceedings (2 July 2007) COM(2005/0018 (CNS); Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA) Art. 4; James B. Jacobs, “Major „Minor‟ Progress Under The Third Pillar: EU InstitutionBuilding In The Sharing Of Criminal Record Information” (2008) 8 Chi.-Kent J. Int'l & Comp. L. 111.152
See Above § 1.3.2.153 Hilton v. Guyot , (1895) 159 U.S. 113, 164; Joel R. Paul, “Comity in International Law” (1991) 32 Harv. Int'l
L.J. 1 at 8-9 (noting that Hilton “is the most commonly cited statement of comity”).