TEAM 16R KENYATTA UNIVERSITY SCHOOL OF LAW MOOTING LPL 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
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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
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,
22
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.
23
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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