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Citation: 1994 - Part I Philip C. Jessup Int'l L. Moot Ct. Comp. 1994
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The Philip C. Jessup International LawMoot Court Competition
1994 PART I
FREEDONIA
V.
BALBOA
Case concerningThe Granting of Refugee Status
BEST MEMORIAL - INTERNATIONAL SEMIFINALS(Respondent)
Best Memorial - International Semifinals (3rd Place - Tie)(Mona E. Evans Award)
Hamline UniversityU.S.A.
HeinOnline -- 1994 - Part I Philip C. Jessup Int'l L. Moot Ct. Comp. [i] 1994
304R
INTERNATIONAL COURT OF JUSTICE
FOR THE UNITED NATIONS
The State of FreedoniaApplicant
. Against -
The State of BalboaRespondent
MEMORIAL FOR THE RESPONDENT
Of Counsel:Agents for Balboa
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TABLE OF CONTENTSPAGE:
INDEX OF AUTHORITIES . ............................ iii
STATEMENT OF JURISDICTION ..................................... vi
STATEMENT OF FACTS ...................... vii
QUESTIONS PRESENTED .......... .................. X
SUMMARY OF THE PLEADINGS .................................... Xi
ARGUMENT
I. The International Court of Justice Does Not Have Jurisdictionto hear this case because the matter of the Pankhursts and theLaborians is within the domestic jurisdiction ofBalboa .................................................. 1
A. Under reciprocity, Balboa may invoke Freedonia's narrowerdeclaration, and this matter should therefore bedismissed .................... * ....................... 1
B. The Self-judging reservation is a valid an necessarylimitation on a state's acceptance of the compulsoryjurisdiction of the I.C.J ............................ 3
C. The Court need not make a decision on jurisdiction underArticle 36 (6) because the declarations deal directlywith the issue of jurisdiction ....................... 6
D. Freedonia may not espouse the claim of the Pankhursts andthe Laborians because they do not have a real, effectivelink with that country ................................. 7
II. Balboa is under no obligation to enure that the Pankhursts and
the Laborians possess an effective nationality ............ 8
A. Neither the Pankhursts nor the Laborians are stateless.8
B. Even is they are stateless, there is no international lawapplicable to Balboa obligating that state to ensure thatthey possess an effective nationality ................ 9
III. Balboa is under no obligation by treaty or customaryinternational law to extend refugee status to the Pankhurstsor Laborians ............. ..... ..... ................... 11
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A. Balboa has exclusive jurisdiction over the refugees as afunction of its inherent sovereignty ................ 11
B. Balboa is not obligated by any treaty to extend refugeestatus to the Pankhursts or Laborians ............... 13
C. Balboa is not obligated to extend refugee status to thePankhursts or Laborians because they are not refugeesunder international law .............................. 14
1. Balboa has the Right to make any determinationwhether or not to grant asylum under customaryinternational law .............................. 15
2. Exercising its right of determination, Balboa hasconcluded that the Pankhursts and the Laborians arenot refugees under customary international law.. 16
IV. Balboa has no obligations under principles of non-refoulementbecause Balboa has not consented to be bound to non-refoulement by treaty, nor is non-refoulement customaryinternational law ......................................... 21
A. Balboa has not consented to be obligated by treaty to theprinciples of non-refoulement ........................ 21
B. Non-refoulement does not create any obligation uponBalboa because the international community does notaccept this principle as customary international law. 22
C. Even if non-refoulement is considered customaryinternational law, Balboa's actions are legal sinceneither the Pankhursts nor the Laborians are refugees asrequired by the principles of non-refoulement ........ 22
V. Balboa has fulfilled its obligation under the convention onthe rights of the child because Balboa, under its rights ofsovereignty has determined that it is in the best interests ofthe children to be placed in Balboan foster homes ......... 23
I. CONCLUSION ............................................. 25
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INDEX OF AUTHORITIES
JUDICIAL AND ARBITRAL DECISIONS
Aerial Incident of 27 July 1955 (U.S. v. Bulg.), 1957 I.C.J.Pleadings 265 ................................................ 5
Certain Norwegian Loans (Fr. v. Nor.), 1957 I.C.J. 9 ......... 1, 3
Fisheries Case (U.K. v. Nor.), 1951 I.C.J. 116 ............... 15
Interhande (Switz. v. U.S.), 1959 I.C.J. 6 .................... 2
Military and Paramilitary Activities in and Against Nicaragua(Nicar. v. U.S.), 1984 I.C.J. 392....... . .................. 4
Ministry of Home Affairs v. Kemali, 40 Int. L.R. 191 .......... 9
Nottebohm (Liech. v. Guat.) 1953 I.C.J. 111....... ........... 8
Right of Passage Case (Portugal v. India), I.C.J. Reports 1960. 13
The S.S. "Lotus" (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10).. o... .. . .. .. . .. .. . .. .. . ........ ....... o....... 13, 21
ARTICLES
H. Briggs, Reservations on the Acceptance of the Jurisdiction ofthe I.C.J., 93 Res de Cours 267 (1958) ....................... 1
T. Cox, Criterion of Refugee Status, 10 Brooklyn J. Int'l Law 333(1984) ....................................................... 19
A. D'Amato, Icy Day at the I.C.J., 79 Am. J.I.L. 379 (1985).. 3
L. Gross, Bulgaria Invokes the Connally Amendment, 56 Am. J.I.L.357 (1962) ................................................ 3, 5, 6
K. Hailbronner, Nonrefoulement and "Humanitarian" Refugees:Customary International Law or Wishful Legal Thinking?, in-The NewAsylum Seekers: Refugee Law in the 19801s: the Ninth SokolColloquium on International Law (1988) ..................... 21, 22
S. Martin, Non-Refoulement of Refugees: United States Compliancewith International Obligations, 23 Harv. Int'l L.J. 357 (1983). 22
R. Newmark, Non Refoulement Run Afoul: The Questionable Legalityof Extraterritorial Repatriation Programs, 71 Wash. Univ. LawQuarterly 833 (1993) ......... * .... .. . ....... .. ............ 22
J.N. Saxena, Problems of Refugees in the Developing Countries and
the Need for International Burden Sharing, in International Law in
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Transition, editors R.S. Pathak and R.P. Dhokalia 95 (1992)... 16
G. Scott and C. Carr, The I.C.J. and Compulsory Jurisdiction, 81Am. J.I.L. 57 (1987) .......................................... 3
L. Sohn, A Short History of the United Nations Documents on HumanRights, in Commission to Study the Organization of Peace, 18thReport, The United Nations and Human Rights 39 (1968) ......... 16
E. Weiss, Reciprocity and the Optional Clause, in The InternationalCourt of Justice at a Crossroads, 89 (1987) ................... 10
BOOKS
J.L. Brierly, The Law of Nations; An Introduction to theInternational Law of Peace (6th ed. 1963) ..................... 15
I. Brownlie, International Law (3d ed. 1979) .................. 9
J. Crawford, The Creation of States in International. Law (1979) .12
I. Detter De Lupis, International law and the Independent State(2nd ed. 1987) ................................................ 13
R. Donner, The Regulation of Nationality in International Law(1983) ............... ............ . . .......... ... ......... 9
J. Ecklund, Non-Appearence Before the I.C.J. (1984) ........... 6
G. Goodwin-Gill, The Refugee in International Law (1983) ... 16, 23
L. Henkin, R. Pugh. 0. Schachter & H. Smit, International Law:Cases and Materials (1987) .................................... 15
L. Horborn, The IRO, its History and Work 1946-1952 (1956) .... 15
I. Hussain, Separate and Dissenting Opinions of the I.C.J. (1-985).4
H. Mutharika, The-RegMlations of Statelessness in International Law(1989) ........................................................ 12
M. Villiger, Customary International Law and Treaties (1985).. 15
P. Weis, Nationality and Statelessness in International Law (1979).
................................. ....................... 9, 11
STATUTES
I.C.J. Statute Art. 34 (1946) ................................ 8
I.CoJ. Statute Art. 36 (2) (1946) ...o........................ 1
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I.C.J. Statute Art. 36 (6) 1946) ............................. 9
I.C.J. Statute Art. 38 (1946) ................................... 6
TREATIES AND CONVENTIONS
Convention Relating to the Status of Stateless Persons, signed NewYork, Sept. 28, 1954, 360 U.N.T.S. 130 (1960) ................ 9
European Agreement on Transfer of Responsibility for Refugees(1980) ............. 0... ...... ........... 0..................... 18
Organization of African Unity: 1969 Convention on Refugee Problemsin Africa, done at Addis Ababa on September 10, 1969, U.N.T.S. No.14,691 ......... .. .......................................... 18
Vienna Convention on the Law of Treaties, done at Vienna on 23 May1969, entered into force on 27 Jan. 1980, Art. 2, para. l(a), U.N.Doc. A/CONF. 39/27, 63 Am. J. Int'l L. 875 (1969) ......... 10, 14
United nations Convention on the Rights of The Child, done Nov. 20,1989, entered into force, Sept. 2, 1990, G.A. Res. 44/25.o..... ..... o .... ....................... .......... 23, 24, 25
United Nations Convention Relating to the Status of Refugees, July28, 1951, 189 U.N.T.S. 137 ...................... 14, 18, 23
United Nations Protocol Relating to the Status of Refugees, January31, 1967, 606 UoN.T.S. 267, 6 I.L.M. (1967) ................ 14, 28
UNITED NATIONS DOCUMENTS
United Nations Charter, June 26, 1945, 59 Stat. 1031, Art. 2,paragraph 1 ........ ........................... 12
United Nations Declaration on Territorial Asylum, December 14,.1967, G.A. Res. 2312 (XXII), GAOR Supp. (No. 16) 81, U.N. Doc.A/6716 (1968) ...................... 16
GOVERNMENT DOCUMENTSA. D. Sofaer, Statement by the Legal Advisor to the Senate ForeignRelations Committee, given Dec. 4, 1985, in Carter & Trimble,International Law, 298 ...... ............................... 4
RESTATEMENTSRestatement (third) of the Law of Foreign Relations § 102 cmt. bo(1986) , ... _.......... .. .. . ................... ......... . 5
Restatement (third) of the Law of Foreign Relations § 903 cmt. b.
(1986)............ ,............................. 2
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Statement of Jurisdiction
Both parties to this case have made declarations, with
limitations, to the compulsory jurisdiction of the Court under
Article 36 (2) of the I.C.J. Statute. There is a dispute, however,
over whether the court possesses jurisdiction due to the existence
of a self-judging reservation in Freedonia's declaration.
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STATEMENT OF FACTS
In April of 1993, Hillary Pankhurst, a national and harsh
critic of the domestic policies of the state of Draconia,
received an invitation to speak at a convention in the
neighboring state of Balboa. Pursuant to a standing law in
Draconia, Hillary applied for and received a temporary exit visa,
valid for only two weeks and for the specific purpose of
attending the conference. r. 1. Hillary remained in Balboa for
two weeks and presented her speech. After receiving a news from
home that her apartment in Draconia had been searched by
government officials, however, Hillary sought to remain in Balboa
beyond the two week parameter of her exit visa. r. 2. She
applied to the Balboan Government for recognition as a refugee.
Because Hillary did not qualify as a refugee under law or custom,
she was denied protection from the Balboan government. r. 2.
Despite her inability to qualify as a refugee, Hillary
continued to stay illegally in Balboa beyond the period provided
in her expired exit visa. Balboa was forced to take steps to
ensure that the further violations of her visa did not occur and
that she was repatriated to Draconia. r. 2. She was detained in
a hotel, where she was provided room and board pending her return
to Draconia. r. 3,4.
During this time, Hillary's husband, Rousseau, and daughter,
Emily, both residents of Draconia, violated their native
country's law by leaving home detainment. They illegally entered
Balboa from Draconia seeking the same refugee protection that
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Hillary had previously been denied, and, for the same reasons,
were denied protection from the Balboan government. Rousseau was
housed in a similar fashion, yet separate from Hillary, pending
his return to Draconia. Balboa determined that it was in Emily's
best interests to be placed in a Balboan foster home. r. 3,4.
Shortly after these events had occurred, Freedonia, a third
state with a government possessing only three years experience,
intervened on behalf of the Pankhursts and a group from Laboria,
a war-torn state neighboring Balboa. Consistent with its recent
tradition of international activism, Freedonia sought the
immediate transport of these individuals to Freedonia. r.4.
Balboa declined this offer, choosing rather to repatriate the
individuals. In response, Freedonia sued Balboa in the
International Court of Justice, seeking the forced transfer of
the Draconian and Laborian nationals to Freedonia.
Both states had previously accepted the compulsory
jurisdiction of the Court under full reciprocity of reservations
pursuant to Article 36 (2). Freedonia's acceptance was far
narrower than Balboa's, however, containing a self-judging
reservation that excluded from their acceptance, "... those
matters which are essentially within (Freedonia's) national
jurisdiction, as determined by the government of Freedonia." r.5.
Balboa here asks the court for a declaration:
1) that the Court possess no jurisdiction to hear the dispute
because the matter of the Pankhursts and the Laborians is within
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the domestic jurisdiction of Balboa; and
2) even if the Court has jurisdiction, Balboa has accorded
treatment to the Pankhursts and the Laborians which complies with
that demanded by international law.
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Questions Presented
1. Whether the International Court of Justice has jurisdiction tohear the instant case?
2. Whether the Pankhursts and the Laborians have standing to bring
this matter before the court?
3. Whether the Pankhursts and the Laborians are stateless?
4. Whether, if they are stateless, does international law obligateBalboa to ensure they possess an effective nationality?
5. Whether Balboa's inherent sovereignty has been limited eitherby its consent or by customary international law thus obligatingBalboa to turn over the refugees to Freedonia?
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Statement of Pleadings
The self-judging reservation is a valid and necessary
component of a state's acceptance of the compulsory jurisdiction
of the International Court of Justice. International law
necessitates that states retain the ability to regulate their
accession to the jurisdiction to the Court under Article 36 (2)
of the ICJ Statute. States, including Balboa have had this power
since the Court's inception.
Under the universally recognized principle of reciprocity, a
defendant state may invoke the narrower reservations to
jurisdiction found in the declaration of an applicant state.
Therefore, Balboa has the authority to invoke the self-judging
reservation contained within Freedonia's acceptance of the
compulsory jurisdiction of the court.
This Honorable Court should not make a decision based on
Jurisdiction under Article 36 (6). Since the parties have
clearly accepted the compulsory jurisdiction of the Court, the
Court's interpretive power under Article 36 (6) has not been
invoked.
Further, this Honorable Court should deny Freedonia's claims
against Balboa due to Freedonia's lack of proper connection with
either group housed in the Balboan hotel. States lacking
effective links with particular individuals may not advocate any
claims of those individuals. Thus, the Pankhursts and the
Laborians do not have standing before the ICJ, since Freedonia
lacks the necessary link required for Freedonia to espouse their
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claim.
The Pankhursts and the Laborians are not stateless under
international law, because they have continuously remained
nationals of Draconia and Laboria, respectively. Furthermore,
Balboa is not a signatory to any treaty which defines state
obligations involving stateless persons and customary
international law does not exist on this issue. Thus, even if
the Pankhursts and the Laborians are determined stateless, Balboa
is under no obligation to ensure that they obtain an effective
nationality.
In addition, Freedonia's claim should be denied since no
treaty or customary international law exists which obligates
Balboa to extend refugee status to either the Pankhursts or the
Laborians. Balboa, under its inherent sovereignty and customary
international law makes all determinations of refugee status
involving people within its jurisdiction. Having determined that
the Pankhursts and the Laborians do not qualify for refugee
status under customary international law, Balboa is entitled to
return both groups to their respective countries of origin.
Furthermore, this Honorable Court should deny any claim of
non-refoulement because principles of non-refoulement are not
applicable to either the Pankhursts' or the Laborians' situation.
Balboa has not expressly bound itself to any treaty involving the
mandatory application of non-refoulement. Furtheimore, because
states have not treated the principles non-refoulement as
customary international law, Balboa is not obligated to follow
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its principles.
Non-refoulement as it has related to state action has only
applied to refugees as recognized by customary international law.
Consequently, even if it were determined that non-refoulement was
customary international law, neither the Pankhursts nor the
Laborians would fall under the scope of its application because
of their lack of refugee standing. Thus, Balboa's inherent
sovereignty is not restricted and foreign entities may not
restrict Balboa's repatriation of the Pankhursts and the
Laborians.
Finally, this Honorable Court should deny any claim that
Balboa is not fulfilling its obligation under the Convention on
the Rights of the Child. Parties to this Convention must make
determinations as to the best interests of the children within
their jurisdiction. The best interests of the children are the
foremost concern and obligation of parties to the Convention.
Balboa under authority of the Convention, has determined that it
is in the children's best interests to be placed in foster homes,
away from the potentially detrimental effects the hotel. Thus,
Balboa has fulfilled its obligations mandated by the Convention.
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ARGUMENT
Io THE INTERNATIONAL COURT OF JUSTICE DOES NOT HAVEJURISDICTION TO HEAR THIS CASE BECAUSE THE MATTER OF THEPANKHURSTS AND THE LABORIANS IS WITHIN THE DOMESTICJURISDICTION OF BALBOA.
A. UNDER RECIPROCITY, BALBOA MAY INVOKE FREEDONIA'SNARROWER DECLARATION. AND THIS MATTER SHOULD THEREFOREBE DISMISSED.
Balboa may invoke the self-judging reservation of Freedonia
in determining the scope of its acceptance of the compulsory
jurisdiction of the ICJ based on the principle of reciprocity.
Under a theory of reciprocity states may only be brought before
the court by other states to the extent those states have
accepted the same jurisdictional commitment.' The International
Court of Justice was conceived as an institution before which all
states would come on an equal footing.2 To ensure recognition
of the principle of judicial equality, the statute of the Court
includes an "optional clause" by which states may accept the
jurisdiction of the court based on reciprocity. The statute of
the International Court of Justice specifically provides that
states "...may at any time recognize as compulsory ipso facto and
without special agreement, in relation to any other state
accepting the same obligation, the jurisdiction of the court in
all legal disputes... ''3 Defendant states may therefore invoke
1 Certain Norwegian Loans (Fr. v. Nor.), 1957 I.C.J. 9; H. Briggs,Reservations on the Acceptance of the Jurisdiction of the Interna-tional Court of Justice, 93 Res de Cours 267 (1958).
2 Briggs, at 267.
3 ICJ Statute Art. 36 (2) (1946) (emphasis added).
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both the narrower reservation of an applicant state's
declaration, or invoke an exclusion not in its own declaration
but in the declaration of an applicant state.4
The seminal case in ICJ dealings with the issue of
reciprocity is Certain NorweQian Loans.5 In that case, Norway
successfully invoked a reservation in France's declaration that
excluded from compulsory jurisdiction of the ICJ disputes that
were within the domestic jurisdiction of France as determined by
France. The court found that judicial equality would not be
served if France were obligated only to that limited extent,
while Norway remained subject to the much broader parameters of
its declaration.6 Employing the principle of reciprocity, the
court allowed Norway to invoke the narrower provisions of
France's declaration.
The instant case is directly analogous to the Norwegian
Loans case. While both parties have accepted as compulsory the
jurisdiction of the I.C.J. under 36 (2), Freedonia's declaration
excepts "those (disputes) which relate to matters which are
essentially within (Freedonia's) national jurisdiction, as
determined by the government of Freedonia", while Respondent
Balboa's declaration does not contain such a clause.7 Just as
4 Restatement (Third) of the Law of Foreign Relations § 903 cmt. b.
(1986); Interhandel (Switz. v. U. S.), 1959 I.C.J. 6.
' 1957 I.C.J. 9.
6 id., at 10.
7r. 5.
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Norway was allowed to invoke this self-judging reservation in
France's declaration, so must Balboa be permitted to invoke this
narrower reservation of the Freedonia. Because the government of
Balboa has determined that the matter of the Pankhursts and the
Laborians is one within its national jurisdiction, therefore, the
I.C.J. does not have jurisdiction to hear this case under article
36 (2) of the statute, and the case should be dismissed.
B. THE SELF-JUDGING RESERVATION IS A VALID AND NECESSARYLIMITATION ON A STATE'S ACCEPTANCE OF THE ICJ'SJURISDICTION.
The International Court of Justice is, by design, a court of
limited jurisdiction.8 The court's power to make judgments and
settle disputes does not arise out of any sovereign body, as is
the case with domestic courts, Rather, the power of the ICJ
emerges from the'consent of the states who, via their unilateral
declarations, agree to be brought before the court and to be
bound by its decisions. As such, the nature of a state's
obligation to adhere to the Court's decisions is generally lik-
ened more to a contract rather than a constitution. Like a
contract, states determine at the point of acceptance the terms
by which they bargain to be accountable to the court.
Critics such as Hersch Lauterpact argue that self-judging
reservations, of which the United State's so called "Connally
Amendment" is the archetype, impair the Court's ability to exer-
8 1957 ICJ Rep. 9: A. D'Amato, Icy Day at the ICJ, 79 Am. J.I.L.379 (1985); G. Scott and C. Carr, The ICJ and Compulsory Juris-diction, 81 Am. J.I.L. 57 (1987); L. Gross, Bulgaria Invokes theConnally Amendment, 56 Am. J.I.L. 357 (1962).
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cise real control over the parties by giving the declaring na-
tions too easy an "out".9 A fundamental tenet of any contractual
or quasi-contractual arrangement, however, is that each party to
the agreement maintains control over the terms by which they
enter into the contract. The entire basis of this contract would
be invalidated if states lacked the ability to determine on which
grounds they commit to the jurisdiction of the court.
At no time in the 70 year history of institutionalized
international dispute settlement has a court ever ruled that a
state's self-judging reservation was not valid. 10 When the
Court has made inroads on national sovereignty by questioning the
validity of a state's reservation limiting its acceptance of the
court's compulsory jurisdiction, i.e. Military and Paramilitary
Activities in and Against Nicaragua,11 states have revoked their
declarations.12 The ICJ's ability to keep states as compulsory
parties to the Statute is essential to the ICJ's continued
ability to function as an effective international dispute
resolution body. Any further exodus from the compulsory
jurisdiction of the court will surely serve to weaken the court's
9 I. Hussain, Separate and Dissenting Opinions of the International
Court of Justice, 176 (1985).
10 E. Weiss, Reciprocity and the Optional Clause, in The
International Court of Justice at a Crossroads, 89 (1987).
11 Nicaragua v. United States, 1984 I.C.J. 392.
12 Abraham D. Sofaer, Statement by the Legal Advisor to the SenateForeign Relations Committee (Dec. 4, 1985), in B. Carter & P.Trimble, International Law, 298 (1991). (withdrawing the UnitedStates' acceptance of the compulsory jurisdiction of the ICJ.).
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effectiveness. Therefore, as a means of allowing states to
determine on their own the extent of jurisdiction they will ac-
cept, the self-judging, Connally-type reservation serves to up-
hold the basic fundamental principles on which the court is based
by maintaining the subtle balance between effective jurisdiction
and national sovereignty.
Moreover, because states that are parties before the ICJ
recognize the validity of such reservations, the self-judging
reservation must be considered valid as a principle of customary
international law.13 Customary international law arises when
states in the international community give general and consistent
usage to a principle of law out of a sense of legal obligation,
or "use and opinio juris".14 States include self-judging
reservations in their acceptance of the jurisdiction of the
court, despite scholarly critiscm to the contrary. This tacit
acquiescence by states to the validity of the self-judging
reservation was illustrated in the circumstances surrounding the
Aerial Incident of 27 July 1955 (United States v. BulQaria).15
The United States began proceedings against Bulgaria before the
ICJ concerning an incident involving the shooting down of an
Israeli aircraft. When Bulgaria made clear its intention to
invoke the self-judging Connally Amendment to defeat jurisdic-
13 Aerial Incident of 27 July 1955 (U. S. v. Bulg.), 1957 I.C.J.
Pleadings 265.; 56 Am. J.I.L. at 366; 1957.
14 Restatement (Third) of the Law of Foreign Relations §102 cmt. b.(1986).
15 1957 ICJ Pleading 265.
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tion, however, the United States immediately withdrew its claim
from the ICJ. Scholars agree that the reason for the withdrawl
of the claim was the United States' realization that Bulgaria's
invoking of the Connally Amendment would withstand the muster of
an ICJ review, and that jurisdiction would be denied because of
it. 16 Such reservations, therefore, have continued to receive
general and consistent usage by the ICJ and international
community as a whole, and their validity remains a principle of
customary international law.
C. THE COURT NEED NOT MAKE A DECISION ON JURISDICTIONUNDER ARTICLE 36 (6) BECAUSE THE DECLARATIONS DEALDIRECTLY WITH THE ISSUE OF JURISDICTION.
In cases involving a self-judging reservation, the courts
have construed the vague and ambiguous language of paragraph (6)
clause very narrowly.17 Article 36 (6) of the ICJ statute
provides that, "..in the event of a dispute as to whether the
court has jurisdiction, the matter shall be settled by the
decision of the court." In the Nottebohm Case, however, the
court established the general rule that article 36 (6) will only
be employed in the absence of any agreement to the contrary. 18
The rationale behind this principle is that, in matters of
compulsory jurisdiction, the will of the parties has already been
16 56 Am. J.I.L. at 366; J. Ecklund, Non-Appearance before the
I.C.J., 156 (1984).
17 56 Am J.I.L. 357 (1962).
1 Liech. v. Guat., 1953 I.C.J. Rep. 111, 119.
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manifested by agreement in their declarations accepting the
jurisdiction of the court.19 In other words, the power of the
court to decide its own jurisdiction is generally derogated by
the will of the parties in accepting the compulsory jurisdiction
of the court. This power should not be employed if an agreement
providing for the extra judicial determination of jurisdiction
exists between the parties.
In the instant case, both Freedonia and Balboa have made
very clear and explicit declarations to the court. These
nations, through their declarations, have clearly and
unequivocally manifested the degree and extent of their intent to
be bound by the decisions of the court. For the court to exer-
cise further interpretive power under article 36 (6) in the face
of the clear and unmistakable language of these declarations
would be an unnecessary and unsubstantiated use of its power
under the statute and established case law. Article 36 (6),
therefore, is not applicable in the instant case, and the
declarations of the parties must govern the issue of
jurisdiction.
D. FREEDONIA MAY NOT ESPOUSE THE CLAIMS OF THE PANKHURSTSAND THE LABORIANS BECAUSE THEY DO NOT HAVE A REAL,EFFECTIVE LINK WITH THAT COUNTRY.
Only states, and not individuals, have standing before the
International Court of Justice.20 A recognized state must
19 id., at 120.
20 I.C.J. Statute Art. 34 (1946).
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espouse an individual's claim in order for the claim to be heard
by the Court. The I.C.J. ruled in the Nottebohm case that the
application of a state to espouse the claim of an individual is
only admissible if there exists a real and effective link between
the state and the individual.21 The primary criteria for an
effective link is that the individual is more closely connected
with the interests of the state attempting to espouse its claim
than any other state.22 The primary factor in determining close
connection is the habitual residence of the individual. In the
instant case, the individuals in question have never lived in
Freedonia. Furthermore, they have no real ties with Freedonia,
either economic, cultural, political or social. Absent such
links, Freedonia may not espouse the claims of the individuals
before the ICJ. The Pankhursts and the Laborians are therefore
without standing before the I.C.J., and their claim must be
dismissed.
II. BALBOA IS UNDER NO OBLIGATION TO ENSURE THAT THE PANKHURSTSAND THE LABORIANS POSSESS EFFECTIVE NATIONALITY.
A. NEITHER THE PANKHURSTS NOR THE LABORIANS ARE STATELESS.
Neither the Pankhursts nor the Laborians are stateless. A
"stateless person" is defined as a person who is not considered
21 1955 ICJ 26.
22 id., at 29.
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as a national by any state.3 A person will generally only be
found to be stateless if they have no state from which they are
conferred a nationality.24 Because courts are very reluctant to
find a person stateless, a merely ineffective link with a country
conferring nationality will not serve to render that person
stateless.25 The Pankhursts are, and have always been, Draconian
nationals. The Laborians, likewise, remain nationals of Laboria.
These links have never been severed. Thus, because they still
are nationals of a states that can provide them with some
protection in the international community, these individuals are
not considered stateless under international law.
B. EVEN IF THEY ARE STATELESS, THERE EXISTS NO APPLICABLEINTERNATIONAL LAW OBLIGATING BALBOA TO AVOID THEIRSTATELESSNESS.
Even if these individuals are stateless, Balboa is not under
any duty to ensure that they possess an effective nationality.26
International law is primarily created by treaty or by the
existence of customary international law.27 The Vienna
Convention on the Law of Treaties, of which both parties here are
23 Convention Relating to the Status of Stateless Persons, signed
New York, Sept. 28, 1954, 360 U.N.T.S. 130 (1960): Mutharika, TheRegulation of Statelessness Under International Law (1989).
24 Brownlie, International Law, 554 (3d ed. 1979).
25 see Ministry of Home Affairs v. Kemali, 40 Int. L.R. 191, 195.
26 Weis, Nationality and Statelessness in International Law, 198
(1979); Donner, The Regulation of Nationality in International Law94 (1983); Weis, at 202.
27 ICJ statue, art. 38 (1946).
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signatories, provides as a fundamental principle that a treaty is
binding only between states that are parties to it, or pacta
teterhis nec nocent nec prosunt. 28 In the instant case, Balboa
is not a party to any international agreements that obligate that
state to take measures, outside its own domestic law, to ensure
that another state's nationals are afforded protection of inter-
national law.29 While there do exist two seminal conventions,
the 1954 Convention relating to the Status of Stateless persons
and the 1961 Convention on the Reduction of Statelessness,
addressing the issue of stateless persons, neither Balboa nor
Freedonia are signatories to those agreements. 30 Since Balboa
is not a party to these, or any other treaty on the issue of
statelessness, it is' not bound by treaty law to any of the
provisions contained within. As such, there is no binding treaty
creating an obligation on Balboa to deal with the effectiveness
of the Pankhursts' and the Laborian's nationalities.
Furthermore, the principles articulated in these treaties
have not been given the sort of usage and opinio juris on which a
binding rule of customary international law obligating states to
prevent a person from becoming stateless is based.31 These
28 Vienna Convention on the Law of Treaties, done at Vienna, May 23,1969, ehtered into force on Jan.., 27, 1980, Art. 2, para 1 (a),U.N. Doc A/CONF. 39/27, 63 Am. J.I.L. 875 (1969).
29 77 Am.J.I.L. 804, 839 (1983).
30 360 U.N.T.S. 130 (1960); 309 U.N.T.S. 59 (1961).
31 H. Mutharika, The Regulation of Statelessness in International
Law 162 (1989).
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conventions speak predominately to discriminatory dena-
tionalization (i.e. taking away one's nationality), and not to
the issue at hand in the instant case, that of negative
denationalization (i.e. preventing a person from being without a
nationality). Furthermore, the low number of signatories to
these conventions, i.e., the 1954 Convention was only signed by 6
nations, and the fact that the I.C.J. has never ruled in favor of
obligating a state to provide aliens with an effective
nationality, shows that any such concept has not yet ripened into
the use and opinio juris necessary to amount to a rule of
customary international law.32
Since there is no applicable treaty or customary
international on point obligating a state to act affirmatively to
prevent a person's de-nationalization, Balboa's decision not to
provide the refugees with a definite nationality is a choice cor-
rectly made within the parameters of that state's domestic law
and policy. As such, Balboa is clearly and unequivocally not
under any duty to ensure that the individuals possess an
effective nationality. Freedonia's claim must therefore be
dismissed.
Ill. BALBOA IS UNDER NO OBLIGATION BY TREATY OR CUSTOMARYINTERNATIONAL LAW TO EXTEND REFUGEE STATUS TO THE PANKHURSTSOR LABORIANS.
A. BALBOA HAS EXCLUSIVE JURISDICTION OVER THE REFUGEES ASA FUNCTION OF ITS INHERENT SOVEREIGNTY
There is no treaty, international custom, or general
32 Weis, at 9.
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principle of international law obligating Balboa to grant refugee
status to the Pankhursts or to the Laborians. By denying refugee
status to the Pankhursts and to the Laborians, Balboa is merely
performing a function of its inherent right of sovereignty.
Sovereign nations possesses an inherent right to conduct
their internal affairs without being subjected to the
jurisdiction of any foreign entity. The United Nations Charter
recognizes that states are exclusively competent with respect to
all internal affairs . All states share an equality, as
reflected in Article 2(1) of the U.N. Charter acknowledging "the
sovereign equality of all members.'' Thus, foreign entities do
not possess the authority to subject Balboa to their jurisdiction
absent a clear intent by Balboa to be so subjected.
Further, Article 2(7) of the United Nations Charter
prohibits U.N. intervention "in matters which are essentially
within the domestic jurisdiction of any state.''35 Since Balboa
is a member of the United Nations with sovereignty equal to that
of every other nation within the United Nations, Balboa's
jurisdiction within its own territory is both prima facie plenary
and not subject to the jurisdiction of any other state.36
A presumption of full sovereignty of a state over its
33 J. Crawford, The Creation of States in International Law, 32(1979).
34 United Nations Charter, June 26, 1945, 59 Stat. 1031, Art. 2,paragraph 1 (hereinafter United Nations Charter).
35 United Nations Charter, Art. 2, paragraph 7.
36 Crawford, at 32.
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territory exists, unless a rule of international law or custom
provides unequivocal proof that a restriction on state
sovereignty exists.37 The Permanent Court of International
Justice (PCIJ) in Lotus38 clearly established that the burden of
proof rests on the party who claims that the territorial
sovereignty of a state has been restricted.
The PCIJ held in Lotus that since France could not show any
customary rules of international law restricting Turkey from
exercising jurisdiction over a Turkish and a French ship involved
in an accident on high seas, Turkey had not violated
international law by exercising its jurisdiction. Further, Lotus
stated that restrictions upon the independence of states could
not be presumed. Later, the International Court of Justice
confirmed the Lotus principles in the RiQht of Passage Case3 9.
Thus, Balboan actions within its borders are merely a permissible
expression of its inherent sovereignty absent a clearly
established international law to the contrary. Further, under
international norms, Freedonia clearly has the burden of proof to
show an international rule limiting Balboa's exercise of state
sovereignty.
B. BALBOA IS NOT OBLIGATED BY ANY TREATY TO EXTEND REFUGEESTATUS TO THE PANKHURSTS OR LABORIANS
37 I. Detter De Lupis, International Law and the Independent
State, 23 (2d ed. 1987).
38 The S.S. "Lotus" (Fr. v. Turk.), 1927 P.C.I.J. (ser. A)
No. 10.
39 Right of Passage Case (Portugal v. India), 1960 I.C.J. 6.
13
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State action is a function of inherent sovereignty.
International law merely defines the limits to which a state may
exercise its jurisdiction. International courts have
consistently held that the conclusion of treaties is the exercise
of state sovereignty, not a limitation of it. Hence, any law or
treaty which effectively binds Balboa would only have a limited
confining effect and would not be a general limitation over
Balboa's inherent sovereignty.
Balboa and Freedonia are both signatories to the Vienna
Convention on the Law of Treaties40 and are expressly bound by
its terms. However, states not signatory to a treaty cannot be
bound by that particular treaty's terms as Article 34 of the
Vienna Convention states, "[a] treaty does not create...
obligations.., for a third State without its consent.'41
Because Balboa is not a signatory to the 1951 Geneva Convention
on Refugees42 or to the 1967 Protocol Relating to the Status of
Refugees43, no term in either document is binding upon Balboa.
C. BALBOA IS NOT OBLIGATED TO EXTEND REFUGEE STATUS TO THEPANKHURSTS OR LABORIANS SINCE THEY ARE NOT REFUGEESUNDER CUSTOMARY INTERNATIONAL LAW.
40 Vienna Convention on the Law of Treaties, U.N. Doc. A/CONF.39/27 (1969), 63 A.J.I.L. 875 (1969), 8 I.L.M. 679 (1969)(hereinafter Vienna Convention).
41 Vienna Convention, Art. 34.
42 United Nations Convention Relating to the Status of Refugees,July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 137 [hereinafter citedas Refugee Convention].
43 United Nations Protocol Relating to the Status of Refugees,January 31, 1967, 606 U.N.T.S. 267, 6 I.L.M. 78 (1967) (hereinafterRefugee Protocol).
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1. Balboa has the right to make any determination whether
to grant asylum under customary international law.
International custom recognizes the sovereignty of each
nation in the area of refugees. Under customary international
law it is the sovereign right of every state to decide whether or
not a foreigner shall be admitted into its territory.44 The
general practice of the host state unilaterally determining
refugee status, coupled with the universal attitude of oping
juris, qualifies this principle as customary international law.
Article 38(l)(b) of the Statute of the International Court
of Justice defines customary international law as "international
custom, as evidence of general practice accepted as law."'4 5
Customary international law has been explained as "a general
recognition among States of a certain practice as obligatory, '46
and as "the generalization of the practice of States."'47
Components weighed in determining whether a practice constitutes
customary international law include a common and widespread
practice among many states48, and whether states have accepted
44 L. Horborn, The IRO, its History and Work 1946-1952 313-14(1956).
5 Statute of the International Court of Justice, 1983 U.N.Y.B.
1334, entered into force on 24 Oct. 1945, art. 38, para. 1(b).
46 J.L. Brierly, The Law of Nations, an Introduction to theInternational Law of Peace 61 (6th ed. 1963).47 Judge Read in Fisheries Case (U.K. v. Nor.), 1951 I.C.J. 116,
191.
48 M. Villiger, Customary International Law and Treaties, p. 13(1985). See also, L. Henkin, R. Pugh, 0. Schachter & H. Smit,International Law: Cases and Materials 37 (1987), (Customary lawexists with the presence of "two distinct elements (1) General
15
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the principle as law, or opino juris.
Customary international law views the granting of asylum as
a right of the state.49 Further, the 1967 United Nations
General Assembly's Declaration on Territorial Asylum recognizes
this principle.50 Article (3) of the Declaration on Territorial
Asylum provides for "the State granting asylum to evaluate the
grounds for the grant of asylum. '51 While United Nations
Declarations do not carry the weight of direct, binding law on
their own,5 2 when reflecting international custom, Declarations
possess a binding character.53 Thus, the ultimate determination
of refugee status remains with Balboa under customary
international law.
2. Exercising its right of determination, Balboa hasconcluded that the Pankhursts and the Laboriansare not refugees under customary internationallaw.
practice and (2) its acceptance as law.")
49 J.N. Saxena, Problems of Refugees in the Developing Countriesand the need for International Burden Sharing, in International Lawin Transition, editors R.S. Pathak and R.P. Dhokalia, p. 95, 99(1949).
-50 United Nations General Assembly Declaration on TerritorialAsylum, December 14, 1967, G.A. Res. 2312 (XXII), GAOR Supp. (No.16) 81, U.N. Doc. A/6716 (1968), [hereinafter Declaration onTerritorial Asylum].
51 id., Art. 1(3).
52 G. Goodwin-Gill, The Refugee in International Law 76, 77(1983).
53 L. Sohn, A Short History of the United Nations Documents onHuman Rights, in Commission to Study the Organization of Peace,18th Report, The United Nations and Human Rights 39, 68-70 (1968).
16
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A refugee is a recognized person in the international legal
community as several international instruments have defined the
term refugee. Balboa is under no obligation to recognize any
particular definition. In addition, the definition of a refugee
is imprecise outside of international treaties and state
practices.
The refugee definition is vague since treaties over the last
half century have defined the refugee differently. The Refugee
Convention and the Refugee Protocol have defined the term refugee
as one who "has been considered a refugee under (previous
particular international agreements) or the Constitution of
International Refugee Organization." 4 Additionally, under
Chapter I, Article 1(A) (2) a person could be a refugee if:
As a result of events occurring before 1 January 1951 andowing to well-founded fear of being persecuted for reasonsof... political opinion, [he] is outside the country of hisnationality and is unable or, owing to such fear, isunwilling to avail himself of the protection of thatcountry.
55
The Refugee Protocol merely extended the Refugee Convention as
Article I (1) of the Protocol stated Othe term 'refugee' shall...
mean any person within the definition of article 1 of the
Convention as if the words 'As a result of events occurring
before 1 January 1951 and'.., were omitted.o5 6
The definition of refugee used in the Refugee Convention and
54 Refugee Convention, Article 1 (A)(1).
55 Refugee Convention, Article 1 (A)(2).
s6 Refugee Protocol, Article I (1).
17
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Protocol has also been adopted in several regional
instruments.57 Balboa is not a signatory to and is thus not
bound to any term in either the Refugee Convention or Protocol.
While not a signatory to the Refugee Convention or Protocol,
Balboa recognizes that the definition of the refugee contained in
Chapter I, Article I(A)(2) of the Refugee Convention is a
reflection of a general principle of international law. The
Refugee Convention is a codification of previous attempts by the
international community to define the term refugee. However,
Balboa under customary international law has the sole right of
determination whether any party applying for refugee status
qualifies as a refugee.
Under the Article 1(A)(2) of the Refugee Convention any
party attempting to qualify for refugee status must be unwilling
to avail himself of the protection of his country of origin due
to a well founded fear of being persecuted for reasons of
political opinion.58 State interpretation of the "well-founded
fear" criterion plays a large role in the determination of
refugee status.59 Wide disparities exist between state
interpretations of the "well-founded fear" criterion,60 ranging
57 See Article 1 of the 1969 Organization of African UnityConvention on Refugee Status, done at Addid Ababa on Sept. 10,1969, U.N.T.S. no. 14,691, and Article 1 of the 1980 EuropeanAgreement on Transfer of Responsibility for Refugees.
58 Refugee Convention, Article 1 (A)(2).
59 T. Cox, Criterion of Refugee Status, 10 Brooklyn J. Int'l L.
333, 353 (1984).
60 id.
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from states with liberal interpretations to several states which
have virtually closed themselves off to all refugees.61 State
interpretation of this criterion is not subject to a review
process either by customary international law or within the
Refugee Convention.
As the sole determiner of the refugee status of the
Pankhursts, Balboa has concluded that a well founded fear of
Draconian persecution based upon Hillary's political opinion does
not exist. Balboa has determined that insufficient evidence has
been presented to establish a well founded causal relationship
between Hillary's fear of potential Draconian persecution and her
political opinions.
Hillary's vocal opposition to Draconia's political views
never changed between her living in Draconia and her visiting
Balboa. Any complaint that Hillary's expressed opinion of
Draconian policies led to Draconian police searching her home is
purely speculation. The Refugee Convention does not consider,
nor does Balboa accept mere speculation to be equal to that of
the "well-founded fear" required to extend refugee status to an
applicant.
Since Balboa has not been provided sufficient evidence to8
establish any link, including the required well founded link
between Hillary's political views and Draconia's search of
Hillary's home, Balboa is under no obligation to extend refugee
61 id. at 354. (States with restrictive interpretations include
Japan, Switzerland, Denmark, and Thailand.)
19
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status to Hillary. Accordingly, Balboa has merely exercised its
sovereign right by denying refugee status to Hillary.
Fear of persecution due to violations of an exit visa's
terms does not qualify a person for refugee status under general
principles of international law. In order for a state to be
obligated to extend refugee status, applicants must show they are
unwilling to return to their country of origin because of a well
founded fear of persecution based upon reasons associated with
the Refugee Convention. Thus, Balboa is under no obligation to
extend refugee status to Hillary and by denying refugee status is
merely exercising a function of its inherent sovereignty.
Neither Rousseau nor Emily qualify for refugee status under
customary international law. Further, Balboa is not under any
obligation to extend refugee status to either one. Neither
Rousseau nor Emily have not presented evidence of a well founded
fear based on any of the requisite factors found in Article 1
(A)(2) of the Refugee Convention. Thus, no international custom
or law exists obligating Balboa to extend refugee status to
either one.
Humanitarian refugees under customary international law do
not create obligations upon states to extend refugee status.
For an international custom to be treated as law, there must be
universal practice and treatment of the custom as if it were law.
States have been reluctant to enter into legally binding
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obligations to admit large numbers of refugees.62 Faced with
situations involving large-scale influx of aliens, states have
felt free to determine whether and under what conditions to
extend refuge. 3 Since the Laborians do not qualify as refugees
under Article 1 of the Refugee Convention and no customary
international law exists which obligates Balboa to extend refugee
status, Balboa is free to make any determination of refugee
status involving the Laborians.
Balboa has no obligation under customary international law
to return the Pankhursts or the Laborians to any country other
than that from which they originated. Since international
tribunals have determined that unless the country challenging the
sovereignty of another can present a customary international
preventing a state action, the host state may exercise its
sovereignty as it sees fit.M
IV. BALBOA HAS NO OBLIGATIONS UNDER PRINCIPLES OF NON-REFOULEMENT BECAUSE BALBOA HAS NOT CONSENTED TO BE BOUND TONON-REFOULEMENT BY TREATY, NOR IS NON-REFOULEMENT CUSTOMARYINTERNATIONAL LAW.
A. BALBOA HAS NOT CONSENTED TO BE OBLIGATED BY TREATY TOTHE PRINCIPLES OF NON-REFOULEMENT.
Only two international instruments deal explicitly with non-
62 K. Hailbronner, Nonrefoulement and "Humanitarian" Refuqees:Customary International Law or Wishful Legal Thinking?, in The NewAsylum Seekers: Refugee Law in the 1980,s: the Ninth SokolColloquim on International Law 123, 129 (1988).
3 id. at 133.
See the S.S. "Lotus", supra note 6.
21
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refoulement, the Refugee Convention and the Refugee Protocol.65
Balboa is not a signatory to and is not bound by any term under
either treaty. Further, since the two articles in the refugee
instruments relevant to the question of non-refoulement do not
apply to either the Pankhurst's nor the Laborian's situations,
special treatment cannot be extended to either group.
B. NON-REFOULEMENT DOES NOT CREATE ANY OBLIGATION UPONBALBOA BECAUSE THE INTERNATIONAL COMMUNITY DOES NOTACCEPT ITS PRINCIPLES AS CUSTOMARY INTERNATIONAL LAW.
Non-refoulement is not customary international law as state
practice concerning non-refoulement has been very erratic6.
States have neither consistently practiced a particular
definition of non-refoulement67 nor have they accepted its
principles as law. 8 Thus, Balboa is under no obligation to
follow its principles.
C. EVEN IF NON-REFOULEMENT IS CONSIDERED CUSTOMARYINTERNATIONAL LAW, BALBOA'S ACTIONS ARE LEGAL SINCENEITHER THE PANKHURSTS NOR LABORIANS ARE REFUGEES ASREQUIRED BY NON-REFOULEMENT PRINCIPLES.
Non-refoulement principles have traditionally appeared in
-65 S. Martin, Non-Refoulement of Refugees: United States
Compliance with International Obligations 23 Harv. Int'l L.J. 357(1983).
6 R. Newmark, Non Refoulement Run Afoul: The OuestionableLegality of Extraterritorial Repatriation Programs, 71 Wash. Univ.L.Q. 833, 845 (1993).
67 id. at 860.
6 Hailbronner, at 129. (Almost all states of Eastern Europe,Asia and the near .east have consistently refused to ratifyagreements containing non-refoulement clauses.)
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state practices involving refugees.69 The Refugee Convention and
Protocol are the only two international documents involving
refugees that address the idea of non-refoulement.70 Article 33
of the Refugee Convention, as adopted by the Refugee Protocol,
recognizes that:
No Contracting State shall expel or return ('refouler') arefugee at the frontiers of territories. 71
Thus, any application of non-refoulement principles require that
a refugee is involved. Because the Pankhursts and Laborians are
neither Article 1 refugees nor recognized by Balboa as refugees,
non-refoulement is not applicable to their situations.
V. BALBOA HAS FULFILLED ITS OBLIGATIONS UNDER THE CONVENTION ONTHE RIGHTS OF THE CHILD BECAUSE BALBOA UNDER ITS RIGHT OFSOVEREIGNTY HAS DETERMINED THAT IT IS IN THE BEST INTERESTSOF THE CHILDREN TO BE PLACED IN BALBOAN POSTER HOMES.
Balboa has fulfilled its treaty obligations as a signatory
to the Convention on the Rights of the Child.1 2 Balboa has
determined that placing the children into Balboan foster homes
was in their best interests, thus complying with Balboa's
obligations under the Convention.
The Convention on the Rights of the Child has as primary
goals to provide for a child's basic needs while keeping in mind
69 Goodwin-Gill, at 69-72.
70 see Martin, supra note 29.
71 Refugee Convention, Art. 33.
72 United Nation Convention on the Rights of the Child, signed
Nov. 20, 1989, entered into force Sept. 2, 1990, G.A. Res. 44/25(1989).
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her best interests. Article 3(1) states, "[i]n all actions
concerning children.., the best interests of the child shall be a
primary consideration."" While Article 6(2) requires that,
uStates Parties shall ensure to the maximum extent possible the
survival and development of the child. o7 4 Balboa has determined
that if the children were to remain in the refugee hotels their
nutritional development and basic chances for survival would be
hindered, contrary to Articles 3(1) and 6(2).
The host country has the authority to place children in
foster homes when the child's needs are not being provided for in
specific situations. The state, under Article 9(1) shall:
... ensure that a .child shall not be separated from hisor her parents against their will, except whencompetent authorities.. determine., that suchseparation is necessary for the best interests of thechild. Such determination may be necessary in aparticular case.. where the parents are livingseparately and a decision must be made as to thechild's place of residence.75
Article 20(1) grants the state authority to provide protection as
it states: "[a] child temporarily or permanently deprived of his
or her family environment, or in whose own best interests cannot
be allowed to remain in that environment, shall be entitled to
special protection and assistance provided by the State."76
Further, once the state has determined that it will provide
73 id., Art. 3(l).
74 id., Art. 6(2).
75 id., Art. 9(1).
76 id., Art. 20(1).
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protection and care for a child it may place the child in foster
care, as Article 20(3) states in part, "Such care could
include.., foster placement."7 Since the parents are living
separately and because Balbda has determined that it is not in
the children's best interests to be at the hotel, Balboa meets
its Article 9 and 20 obligations to provide for the children's
best interests by placing them in Balboan foster homes.
Also, signatory states are under no obligation to ensure
that the child's ethnic, religious, cultural and linguistic
background is held continuous when placed in the foster home.
Article 20(3) requires that: "When considering solutions, due
regard shall be paid to the desirability of continuity in a
child's upbringing and to the child's ethnic, religious, cultural
and linguistic background.""8 While the article requires the
state to give regard to the child's background when deciding
placement, the article does not create obligations upon the State
by mandating continuity. By placing the children in Balboan
speaking foster homes, Balboa does conform to Article 20(3).
VI. CONCLUSION
For the foregoing reasons, the government of Balboa
respectfully requests this Honorable Court to (1) declare that
this court does not possess jurisdiction over these matters, and
(2) deny Freedonia's claim that Balboa's treatment of the
refugees does not conform to customary international law.
7 id., Art. 20(3).
78 id.
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