25 November 2013Judgment

QUESTIONS OF STATEHOOD, INTERNATIONAL HUMAN RIGHTS LAW AND AGREEMENTS BETWEEN STATES

(ALFURNA v. RUTASIA)

1

TABLE OF CONTENTS

TABLE OF CONTENTS

HISTORICAL AND FACTUAL BACKGROUND

STATEMENT OF JURISDICTION

QUESTIONS PRESENTED

I. ALFURNA CEASES TO BE A STATE WITHIN THE PURVIEW OF THE

REQUISITES OF STATEHOOD STIPULATED IN THE MONTEVIDEO

CONVENTION

II. ALFURNA IS ESTOPPED FROM SEEKING CLAIMS FOR IT HAD

COME TO COURT WITH UNCLEAN HANDS; THERE WAS NO

VIOLATION OF ANY INTERNATIONAL LAW IN RUTASIA’S

TREATMENT OF ALFURNAN MIGRANTS

III. RUTASIA’S CONDUCT IN RESPECT OF ALFURNAN’S ASSETS IS

CONSISTENT WITH INTERNATIONAL LAW

IV. ALFURNAN MIGRANTS WERE TREATED IN ACCORDANCE WITH

RUTASIA’S OBLIGATION UNDER INTERNATIONAL LAW.

RUTASIA’S PROPOSAL TO TRANSFER ALFURNAN MIGRANTS TO

SAYDEE IS LEGAL

2

I. Historical and Factual Background

The initial territory of Alfurna was located in the Bay of Singri, formed of two

low- lying islands: Batri and Engili. Rutasia is a State located 350 miles east of Alfurna.

Since its settlement, Alfurna faced difficulties caused by the harsh climate of the bay.

Natural disasters, such as earthquakes, cyclones and tsunamis, encountered the bay

annually. As a consequence, the low-lying regions of both Alfurnan islands were

endangered by the rising tides. Over the years, due to the climate change and its

worsening effects, the inundated areas extended. To avoid inundations Alfurna

constructed seawalls that required considerable financial outlays.

Already in 1992, the Tom Good Institute, a world-renowned research center,

reported that ‘Rutasia has been a major contributor to the worsening effects of climate

change’. Nevertheless, Rutasia committed to a massive public works program,

incontestably accelerating the generation of carbon emissions.

In early 2003, Prime Minister Fatu established the ‘Climate Emergency

Committee’ (‘CEC’) to examine the future prospects of Alfurna. In August 2004, the

CEC reported, based on scientific evidence, that sea levels even at low tide would

overwhelm the islands. The report recommended the government to start making plans to

evacuate the Alfurnan migrants and to identify a new ‘homeland’. By 2005, the Fatu

government decided to implement all of the CEC’s recommendations.

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

Key agencies and the executive officers of Alfurna’s government relocated to Finutafu, a

State on the western side of the Bay of Singri. Approximately 15,000 of Alfurnans were

relocated to Finutafu, while the remainder fled to Engili. A few months later, Batri Island

became permanently submerged.

The CEC negotiated with several countries on the cession of territory for Alfurna.

In November 2007, official negotiations with Finutafu on the cession of the Nasatima

3

Island started. Meanwhile, severe storms damaged Engili which became permanently

submerged on 26th December 2011. Alfurna and Finutafu failed to agree on the cession

of Nasatima Island, but in the end, Finutafu agreed to lease the island for 99 years.

According to this agreement, Alfurna is entitled to apply and enact its own laws on the

island. However, in regard to defense, customs, and immigration Finutafu retains full

sovereignty.

The lease agreement went into effect on 9 March 2012. Three government

ministries already relocated to Nasatima Island and the remaining 11 have representatives

and functionaries on the island. The definite relocation is planned for the end of 2013.

Alfurna’s population consists of approximately 53,000 citizens, including 1,500

habitants of the Nullatree Cove village. The latter villagers rejected urbanization and

lived isolated on the coast of Engili. By 2009, the evacuation plans undertaken by

Alfurna’s government enabled all but 3000 Alfurnans to resettle elsewhere. Roughly half

of the remaining Alfurnans were Nullatree Cove villagers who refused to be evacuated.

During 2009 and 2010, the Rutasian Navy intercepted 2,978 Alfurnan migrants in

Rutasia’s territorial waters. All migrants were detained in the Woeroma Immigration

Processing and Detention Centre (‘the Woeroma Centre’). The 1,492 Nulatree Cove

villagers were located in Block A, while the other Alfurnan migrants were housed in

Block B.

The Rutasian Immigration Ombudsman expressed his concerns about the human

rights violations in the Woeroma Centre. According to his report, the facility resembled

‘a medium security prison with high fences’. The Alfurnan migrants were housed in

overcrowded rooms and exposed to hygiene problems. Inappropriate food and water was

provided and the medical service was limited. Three Alfurnans committed suicide and

another five died from dysentery. Rutasia’s Immigration Department did not take any

measures to overcome these concerns.

4

By the end of November 2011, an earthquake damaged the Woeroma Centre,

revealing asbestos in Block A. Since it became uninhabitable, the Rutasian government

decided to transfer the migrants to Republic of Saydee (‘Saydee’), a State with

objectionable human rights records. Several NGO’s protested the proposed transfer,

underlining that Saydee’s detention centers resemble prisons where conditions are

degrading and human rights are not respected. Alfurna’s Prime Minister publicly opposed

the transfer.

Meanwhile, the International Legal Support Association (‘ILSA’), representing

the Alfurnan detainees, filed a suit in Rutasia’s Supreme Court. They requested an

emergency stay of the proposed transfer. However, the case was dismissed because the

Court could not interfere with the Rutasia’s foreign policy.

The Alfurnan government and Finutafu’s ambassador plead on international fora

to stop the transfer. They were supported by 67 UN Member States. After ILSA filed an

urgent application, the Rutasian Supreme Court approved the motion and permitted a

temporary stay until the judgment of the ICJ would be issued.

In 1992, in response to increased inundations, Alfurna’s government sought loans

to finance the reparation of the seawalls. The Rutasian and Alfurnan governments

launched the ‘Alfurna Climate Change Remediation Project’ (‘ACCR Project’') and

signed a ‘Climate Change Loan’ (‘CCL’) of USD 125 million. The agreement was

executed on 5 June 1992 by the Rutasian International Cooperation Administration

(‘RICA’). Between 1992 and 1997, all funds were disbursed into the Alfurna Reserve

Bank’s (‘ARB’) account in the Provincial Bank of Lando.

In 1999, Alfurna failed to repay its obligations under the CCL and other loans

taken under the Paris Club arrangements. The Alfurnan government started negotiations

with several creditor countries resulting in debt reliefs. Rutasia cancelled 25% of the CCL

principal, reduced the annual interest rate from 2.0% to 1.5%, and rescheduled repayment

5

to 2027. In September 2002, further 25% of the CCL were cancelled, the interest rate was

reduced to 1.1%, and the period for repayment was extended for further 20 years.

Under the provisions of the CCL, Alfurna was obliged to use the services of

Rutasian companies. Accordingly, it contracted the Mainline Constructions Limited

Company (‘MCL’). However, already in 2001, a dispute arose. The Alfurnan

Government claimed that repairs on the seawalls were partly substandard. In November

2002, the Arbitration Tribunal judged in favor of Alfurna and awarded damages of USD

35 million. Furthermore, USD 20 million, earlier held in deposit, were released.

In January 2005, the Alfurnan Parliament passed legislation declaring a

moratorium on its foreign debts. As a result, Alfurna ceased repaying any of its loans.

Facing financial problems, Rutasia started to collect its debts. On10 February 2012,

RICA put Alfurna on notice that it had been in default under the loan agreement for more

than one year. Alfurna did not respond. After one month, president Millard declared the

entire loan balance due and payable and ordered the closure of the ARB account. The

total amount of USD 25 million was seized. On 20 March 2012, Prime Minister Fatu

responded with a diplomatic note, stating that the seizure violated international law.

Rutasia did not respond.

Unable to resolve the dispute by negotiation, Alfurna as Applicant and Rutasia as

Respondent brought their dispute to the ICJ on 14 September 2012. Since Rutasia

challenges the jurisdiction of the ICJ, the parties drafted the Compromis which is now

before this Court.

6

II. Subject-matter of Dispute and Jurisdiction of the Court

The Republic of Alfurna (‘Alfurna’) and the State of Rutasia (‘Rutasia’) hereby

agreed to submit the present dispute to the International Court of Justice (‘ICJ’) in

accordance with Articles 36 (1) and 40 (1) of the Statute of the Court. As per Article 36,

the jurisdiction of the Court comprises all cases that the Parties refer to it. Applicant

submits to the jurisdiction of the Court.

III. Issues Before the Court

I. Whether Alfurna is still a state, and whether the Court has jurisdiction over Alfurna‘s claims?

II. Whether the seizure of the Alfurnan assets by Rutasia violates international law?

III. Whether Rutasia‘s acts towards the Alfurnan migrants are inconsistent with international law, and whether Alfurna can exercise diplomatic protection on behalf of the migrants?

IV. Whether the proposed transfer to Saydee is in accordance with international law?

7

IV. Judgment

Present: Presiding Judge: SJ Normando A. Catubay; Judge: Ma. Karmina G.

Guevarra and Frederick B. Mayuga

THE COURT,

composed as above,

after deliberation,

delivers the following judgment;

The original islands of Alfurna have been submerged underwater. They are now

inhabitable and practically inexistent. This event is unprecedented in our lifetime;

nevertheless, unimaginable given the rapid changes of our climate and environment. This

event has also caused social and political changes. The State of Rutasia now considers

the Republic of Alfurna inexistent. In view of this, they have acted accordingly.

However, the Republic of Alfurna insists their inexistence, albeit being displaced by the

forces of nature. They intend to fight for their recognition, even if, for them, they really

do not have to.

I. Whether Alfurna is still a state.

This Court considers this the main and encompassing issue. Its resolution has a

significant impact to the succeeding issues. And this Court rules that Alfurna is still a

state.

Both agents anchor their arguments on the 1933 Montevideo Convention on the

Rights and Duties of States. Both subscribe to Article 1 of the Convention; yet, differing

in their argument to support their claims. A state should possess the following

qualifications: a) a permanent population; b) a defined territory; c) government; and d)

capacity to enter into relations with other states1.

1 Montevideo Convention on the Rights and Duties of States, Art. 1 (1933)

8

Rutasia claims Alfurna is no longer due to the fact that Alfurna lost its island and

has no territory. This contention does not hold water. True, Alfurna lost its original

lands. But Alfurna has remedied this problem by contracting with Finutafu for the lease

of one of the latter’s islands – Nasatima. Rutasia’s argument focused solely on Alfurna’s

losing of its defined territory. Rutasia failed to acknowledge and refute Alfurna’s lease

of Nasatima Island, which, undoubtedly, is defined as well.

Rutasia furthers its contention by questioning Alfurna’s other criteria. Rutasia

claims that Alfurna has no permanent population. They posit that the disappearance of

Alfurna’s original land would relegate its people to wandering, negating their

permanency. This view is far-fetched and speculative. As ruled, Alfurna has a defined

territory with the lease of the Nasatima Island for a period of 99 years. That is more than

sufficient time for the people of Alfurna to build and start anew. This Court is not

prepared to belittle the capacity and ability of the people of Alfurna to sustain themselves

through a nomadic existence.

Rutasia argues that Alfurna has failed to meet the government criterion. They

claim that the government of Alfurna is no longer an effective government when its

exercise of power over the population and territory is not complete. This Court has ruled

that Alfurna has a defined territory and a permanent population. The question now is

whether the government of Alfurna has over effective control. Based on the established

facts, Alfurna has an effective control. Given Alfurna’s predicament, their current

government has worked with the successful lease of another land. It has released

issuances in response to their current situation. Their people have benefitted in the

leasing of Nasatima and complied with such issuances. The government of Alfurna has

successfully raised the instant case with this Court. It is noteworthy that no other

separate Alfurnan administration has taken such tasks on. Thus, this Court concludes that

Alfurna still has a government.

On their last point, Rutasia also advanced that Alfurna has no capacity to enter

into relations with other states. They elucidated that this capacity is a consequence of,

rather than a criterion, of statehood. As it has no government and no population and

9

territory to assert its sovereignty, Alfurna no longer has this capacity. Likewise, this

argument of Rutasia now falls given our rulings. Alfurna has a defined territory,

permanent population and government. Moreover, Rutasia failed to consider that Alfurna

still has the capacity when Alfurna contracted with Finufatu. When it leased Nasatima

Island, Finufatu recognized Alfurna’s capacity. This fact cannot be questioned by

Rutasia. As such, even Rutasia conceded and withdrew this argument.

Both Rutasia and Alfurna are not signatories to the original Convention. And

generally, the dictate of a treaty are limited to its signatories. However, such treaties may

translate into an international custom when subjects of international law act in accordance

with the treaties. Yet, such positive act should be motivated by sense of legal duty, not

merely out of courtesy or convenience, for it to amount to international custom2. Clearly,

both Rutasia and Alfurna have submitted to the Convention as it their legal duty to do so.

Both agents recognize with the force of international custom. Had they not recognized it,

they would not have anchored their arguments on a treaty they are not party to.

The Convention provides for the criteria of statehood. It gives the qualifications

an entity needs to meet for it to become a state. However, it does not provide how a state

loses its statehood. Furthermore, the Convention provides that the recognition of a state

signifies that the state which recognizes it accepts the personality of the other with all the

rights and duties determined by international law3. Such recognition is unconditional and

irrecovable4. The statehood of Alfurna was unquestioned prior to the loss of its islands.

It was recognized, even by Rutasia, which had entered into several pacts with Alfurna.

Rutasia’s recognition cannot be revoked and reserved with conditions.

II. Whether the seizure of Alfurnan assets Rutasia violates international law

Pursuant to loan agreement between them, Alfurna maintained assets in an account in

Rutasia’s Provincial Bank of Lando. At the height of the Alfurna’s predicament of losing

2 North Sea Continental Shelf (F.R.G. v. Den.; F.R.G. v. Neth.), 1969 I.C.J. 3 (Feb. 20)3 Montevideo Convention on the Rights and Duties of States, Art. 6 (1933)4 Ibid.

10

its islands, Rutasia seized Alfurna’s assets.

Rutasia claims their conduct of seizing such assets is consistent with international law.

They do not dispute that their extending the loan to Alfurna was in compliance with their

obligation as signatory to the United Nations Convention on Climate Change and the

Kyoto Protocol. However, Rutasia has not ratified the Protocol. As such, Rutasia claims

that the Convention is not legally binding upon them due to its non-ratification of the

Protocol. This argument is flawed. Their binding to the Convention is not anchored on

their ratification to the Protocol or any subsequent protocol of the Convention for that

matter. The Convention is binding upon them. The Kyoto Protocol has come into force,

despite Rutasia’s non-ratification. Nonetheless, Rutasia can still be considered as a

persistent objector5 of the Protocol.

On the other hand, Alfurna asserts that Rutasia violated international law when Rutasia

seized their assets. Alfurna, invoking the United Nations Convention on Jurisdictional

Immunities of States and Their Property, argues that it enjoys State immunity from

measures of constraint in connection with proceedings before a court. Courts of the

forum state are prevented from imposing enforcement measures against the foreign state

as states are imbued with sovereign equality. The ostensible flaw of Alfurna’s argument

is that it relies on a convention which is not yet in force. Nevertheless, Alfurna may

argue that the Convention is a codification of an international custom. Still, such custom

does not apply in this case as the closure of Alfurna’s account with the Provincial Bank

of Lando and transfer to the Rutasian government’s general consolidated fund was an

executive direction and not a judicial order.

This Court is fully aware of the existence of the Climate Change Loan Agreement

between Alfurna and Rutasia. Thus, this Court declares that such agreement is the law –

a jus speciale – between Alfurna and Rutasia. Considering their claims, this Court is

examining its pertinent provisions on Default and Arbitration. The Climate Change Loan

Agreement provides that:

“Default [is] the failure of the debtor to make a schedule payment within 30 days of the

5 Anglo-Norwegian Fisheries, U.K. v. Norway, Order, 1951 I.C.J. 117 (Jan. 18)

11

date on which is due…. Once the debtor is informed of the default and fails to cure it

within an additional 30 days, the entire principal balance of the Loan, with 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 the need for any judicial authorization, up to

the amount of the then-current indebtedness.”

On the other hand, the agreement states that:

“[A]ny dispute arising under the Climate Change Loan Agreement is to be submitted to

binding arbitration under the Rules of the International Chamber of Commerce.”

Without question, Alfurna has failed in its obligation to pay Rutasia. In turn,

Rutasia made the necessary demands to Alfurna to make payment but the latter still

reneged. Consequently, Rutasia had the right to seize, which they elected to, Alfurna’s

assets. Rutasia’s election to seize the assets displayed their disregard with the provision

arbitration. There was a need for arbitration as a dispute arose between Alfurna and

Rutasia when the former overlooked Rutasia’s demands.

Nevertheless, this Court is not unmindful of the right (i.e., to seize debtor’s assets

subject to its control) Rutasia has been granted by the agreement. Likewise, this Court

recognizes Alfurna’s rights to the same agreement. Ultimately, this Court does not

chastise Rutasia for not submitting the matter to arbitration, but it have would submit

itself to arbitration if Alfurna elects to.

III. Whether Rutasia‘s acts towards the Alfurnan migrants are inconsistent with

international law, and whether Alfurna can exercise diplomatic protection on

behalf of the migrants?

Alfurna is foreclosed from making such claims as it has come to the Court with

unclean hands. The PCIJ, the ICJ60, jurists and state practice have held that the principle

of clean hands precludes a State guilty of illegal conduct from making claims with regard

to illegalities by another States which have resulted as a consequence.

12

There exists a duty to prevent creation of large refugee flows in customary

international law. The UNGA has confirmed such a duty, in light of comments prepared

by a Group of Governmental Experts. These flows result from lack of effective protection

or control over territory. States of origin are considered to have lost the right to protect

refugees fleeing from them.

Alfurna had not taken affirmative steps in providing adequate evacuation facilities

to the migrants67. Further, Alfurna expressly barred the right to return of the migrants68

and has not discussed voluntary repatriation with Rutasia. The right to return is present as

treaty obligation and customary international law70. Any exercise of protection would

have removed the need to process by Rutasia, which resulted in the alleged illegality.

The interception of irregular migrants by States in territorial waters does not

violate the doctrine of innocent passage. The 1951 Convention Relating to the Status of

Refugees [“Refugee Convention”] does not stipulate any procedure for processing. The

contracting parties may determine procedure- including the time period for refugee status

determination. States may accord prima facie refugee status to a group if it readily

appears to fall within the definition. In the absence of persecution on the convention

grounds by an identifiable agent of persecution, the migrants do not appear to be

refugees. There lies no duty to grant asylum outside the Refugee Convention.

Furthermore, there is no violation of Article 31 of the Refugee Convention as [a]

temporary protection is being offered, [b] the administrative detention falls within Article

31(2) and [c] the migrants are potentially excludable.

In situations of mass influx, there is a deviation from usual procedure. The determination

of a mass influx situation is a subjective determination — there is no minimum number

of people and other determinants are considered. The flow of Alfurnan migrants to

Rutasia constitutes a mass influx, impairing efficient asylum determination.

The Alfurnan migrants have received temporary protection, which may continue till a

durable solution is reached. State practice of temporary protection is extensive81 in

situations of mass influx. The government of Papua New Guinea justified its hospitality

13

to Irian Jayans under the right to provide temporary protection. The UNHCR has

accepted this practice, considering this an extension of the rule of non-refoulement.

Refugee status determination is suspended during this period, as was done by

Australia to asylum seekers from Afghanistan and Sri Lanka. Restrictions, such as those

placed on the Alfurnan migrants, are placed on persons under such protection as done in

Israel and the UK.

In any event, administrative detention falls within the exception in Article 31(2).

According to subsequent state practice, administrative detention of irregular migrants is

not penalization under Article 3190. There is an implicit recognition of this practice in

the Convention on Migrant Workers. The UK stated that restrictions on the ability to

detain asylum seekers in exceptional circumstances were unjustified. In fact, the UNHCR

submitted, in Saadi v. United Kingdom, that states could impose restrictions on

movement in order to investigate irregular migrants.

The migrants are potentially excludable and, therefore, subject to provisional

detention.

Provisional detention can be provided while identifying excludable persons

without violating Article 31. This is not penalization due to illegal entry— detention

pertains to the claim of being a refugee. The evidence indicating the involvement of

migrants in financing illegal activities can attract criminal responsibility. Further, some

migrants have Alfurnan criminal records. Article 1F of the Refugee Convention requires

the crime to be committed outside the territory of the state of refuge. However, state

practice has allowed for exclusion when a crime is committed in both the state of refuge

and another state98— as is the case with the Alfurnan migrants. The detention is not

indefinite and procedural safeguards have been provided.

The state practice of detention of irregular migrants indicates that there is no need

to have a limit on the duration of detention. Opinio juris recognizes that administrative

detention may continue for as long as necessary — the investigation of individuals results

in this necessity. Procedural safeguards have been provided – the migrants had access to

14

court and legal services. The Rutasian Supreme Court, however, has a limited power of

review in matters of national security.

It is on these above matters that honorable court rules in favor for Rutasia seeing

that their actions were in accordance with International Law albeit the cries of the

immigrants/refugees who found themselves in sub par conditions. What can be offered by

Rutasia must be considered as in the best of interest of the Alfurnan refuges but also in

the protection of its own citizens.

IV. Whether the proposed transfer to Saydee is in accordance with international

law?

Rutasia has not violated its human rights obligations in the treatment of Alfurnan

migrants at Woeroma centre.

With respect to the conditions of detention, Rutasia submits that the obligations of

a state in its treatment of persons deprived of liberty is minimized in cases of mass-influx,

as evidenced by subsequent state practice as such exists for standards of treatment similar

to those provided by Rutasia.

There is uniform state practice that states house migrants in converted prisons. In

the European Union, Australia and the United States, this practice is followed prior to

determination of refugee purposes, particularly when there is a lack of available space.

State practice shows that hygiene issues due to overcrowding are unavoidable, when

there is an overburdening of infrastructure.

After similar incidents of suicide by migrants in Australia, the Australian

government justified its failure to act by citing "overburdening of detention and

processing infrastructure due to the rapid arrivals and varying risk profile of detainees".

A similar response was tendered by the US to the Inter-American Court of Human

Rights, with regard to migrant deaths. The Woeroma Centre is the only processing

facility in Rutasia and the Alfurnan migrants would have been accommodated in an

acceptable housing facility, i.e. Block A, but for a situation of mass-influx.

15

It is also to be considered that Rutasia's obligations are minimized in a situation of

mass-influx, under the principle of burden-sharing.

The limitation of a state's treatment obligations in a situation of mass-influx has

been recognized by the UNHRC and international jurists. While any treatment principles

are non-binding in the period of temporary refuge, basic minimum standards for the

protection are to be provided — unless States can demonstrate a lack of resources to

fulfill even such a minimum obligation. While obligations arising out of ICCPR and CAT

may not be derogated from by citing lack of resources, the conflicting norms under

refugee law and human rights law can be harmonized, under the principle of lex specialis.

Therefore, under the principle of harmonization, Rutasia's positive obligations shall be

minimized as per its margin of appreciation.

Wherever possible, particularly with regard to family unity and medical care,

Rutasia fulfilled its protection obligations. However, Rutasia, while implementing its

obligations to provide the basic minimum standard to the Alfurnan migrants, was faced

with several austerity measures, due to disaster management and credit crisis. Rutasia's

obligations are further limited by equitable concerns as the international community

failed to respond to the principle of burden sharing.

The transfer of the Alfurnan migrants to Saydee will not violate the principle of

non- refoulement, as it [1] the transfer falls within the exception of provided in the

'Protection Elsewhere Doctrine' [2] Rutasia has sufficient guarantees for the protection

and welfare of the Alfurnan migrants in Saydee.

Relevant state practice in Australia, United States, and opinio juris affirm the

existence of the 'Protection Elsewhere Doctrine', which refers to a situation in which a

state or agency acts on the basis that the protection needs of a refugee should be

considered or addressed somewhere other than in the territory of the state of refuge.

State practice and opinio juris affirm that de jure compliance to the Refugee

Convention is not a pre-requisite, as the principle of non-refoulement has attained the

status of customary international law. Saydee has ratified the ICCPR, which is inclusive

16

of the obligation of non-refoulement, as well as the provision against inhumane treatment

and torture.

Further, state practice consistently shows that for a violation of non-refoulement,

the individual's in question must be specifically threatened, due to past persecution, as

opposed to a general perception of fear of persecution, due to a bad human rights

situation.138 While Saydee may have a poor human rights record, there is not specific

threat to the Alfurnan migrants.

Rutasia has an interest in ensuring Saydee's compliance with its protection

obligations, as it will be held liable for aiding or assisting a violation of an international

wrongful act, having financed Saydee's operations. Rutasia's continuous protection exists

even if protection obligations are delegated, assigned or transferred by bilateral

agreements. The contention of loyalty to the contract is untenable.

Rutasia has entered into a written agreement with Saydee, which amounts to

diplomatic assurances, as evidenced state practice. Diplomatic assurances have been

recognized by the UNHCR, and have been considered sufficient even when there is a

highly probable risk of ill- treatment in state practice145 and opinio juris146. Diplomatic

assurances have been held to be irrevocable, and legally binding, given by organ of the

government having responsibility to ensure compliance with the assurance.

A unilateral act of a State means an unequivocal expression of will which is

formulated by a State with the intention of producing legal effects in relation to the

international community. The legally binding nature of unilateral statements has been

recognized in the Nuclear Tests case. Saydee has issued a public statement promising to

remedy its poor human rights situation subject to sufficient funds. The expectation of bad

faith from Saydee is nothing more than an unactionable figment of the imagination and

would therefore be unfair to rule on such matter due to fears. A unilateral act of State

should be given the faith and respects it deserves from the parties and therefore be seen

on its merits and not on the doubts. Should there be any form of violations then the

parties that are affected are not without recourse or remedy.

17

CONCLUSION

This Court understands the circumstances surrounding this case. The predicament

of Alfurna is the loss of its lands due to the forces of nature. Without ruling on its

motives, Rutasia acted accordingly and considered the demise of Alfurna. Rutasia would

naturally protect its interests. And so does Alfurna. It likewise acted accordingly and

fought for its rights and, more so, its entire existence. When this Court ruled that Alfurna

is still a state, Alfurna, for all intents and purposes, won. They are still in a position to

assert their right as a state and as a people without question from other states. Rutasia

shall recognize Alfurna’s statehood. Consequently, Rutasia actuations against Alfurna

cannot be motivated by bad faith. Rutasia cannot consider Alfurna an inexistent

sovereign state and an expired second party to a binding contract. The general principles

of law are recognized in international law6.

It is in this regard that this honorable court awards the victory of this case to

Alfurna. Although, the court is not in unison with its decision as one of the judges – the

presiding judge no less – has posed a dissent to the court’s decision of ruling in favor of

Alfurna. The honorable judge Catubay has opted to write a dissent decision separate from

that of the two other judges.

6 Statute of the International Court of Justice, Art. 38(1)(c)

18

Dissent.

Honorable Judge SJ Normando A. Catubay:

Though I agree with most of my fellow justices rulings, I dissent in the totality of

judgment of my fellow justices:

I. Whether Alfurna is still a state, and whether the Court has jurisdiction over

Alfurna‘s claims?

Alfurna is still a state. The Montevideo Convention provides the minimum

requirement of a state. As provided in Article 1, the qualifications for statehood as being

the possession of (a) a permanent population: (b) a defined territory; (c) government and

(d) capacity to enter into relations with other States. All of which are still present in

regards to Alfurna losing its physical territory.

The main argument of the counsel for Rutasia is that, Alfurna losing its physical

territory is not considered a State in all purposes of the definition of the term. However, it

can be seen throughout history that absence of physical territory does not stop the

existence of a State. A clear example of this phenomenon is the “Knights of Malta” who

are living in a piece of territory owned by Italy in which they merely lease the property.

They are given international recognition in the United Nations and are classified as “other

states.” The government is even able to give passports and citizenship to those who help

their cause. The Vatican City, Palestine, Taiwan are only to name a few.

The Montevideo Convention and actually most if not all of International

Conventions does not nor ever expect a State to lose its statehood. That is why there is no

International Convection that has express provision of cessation of Statehood. In fact,

only international recognition is a guiding principle when a state loses its Statehood; such

in the case of Czechoslovakia, wherein it lost its statehood due to political and civil

unrest in which it divided the country and is now partially called Czech Republic. Many

of the East European countries encountered this situation, especially after the fall of

19

communism. Speaking of fall of communism, the situation of East and West Germany,

once a divided nation and were considered a separate State in the international

atmosphere, it then merged into one after the fall of the Berlin Wall in which there was

no procedural action to recreate or break the statehood, international recognition of the

new state merely dictated it and acknowledged it as a new State.

All other requirements given in the Convention are present. Alfurna have the

capacity to contract as proof of which is the lease agreement between Finifatu and the

Alfurna Government of the former’s land subject to conditions. They likewise have

working government who are working hard to facilitate with its citizens needs, proving

the citizenship requirement in the matter.

All of the minimum requirements of statehood are present in Alfurna but more

importantly, the counsel of Rutasia failed to convince that there claim that Alfurna is not

a state anymore under the provisions of the Montevideo Convection. Therefore I rule that

Alfurna is still a State.

II. Whether Rutasia‘s acts towards the Alfurnan migrants are inconsistent with

international law, and whether Alfurna can exercise diplomatic protection on

behalf of the migrants?

III. Whether the proposed transfer to Saydee is in accordance with international

law?

In the deliberations regarding the agreed procedure during the resolution of the

matter, my fellow justices and I agreed that Issues II and III being similar in nature was

grouped into one (1) issue; whether or not Rutasia’s acts in the treatment of the

Alfurnians were reasonable.

As provided by in the Humanitarian Rights Law, a migrant or refugee shall be

afforded with proper Humanitarian Treatment. This is the treatment of a person with

utmost care and respect with regard of his treatment during his period of detention.

Though I would agree with the counsel of the Alfurnians regarding the maltreatment of

the citizens, the treatment is subject to the limitations of the capability of the detaining

20

State.

The counsel of Rutasia so far as to arguing that their treatment of the Alfurnians

was valid subject to the 1951 Convention of Protection of Refugees is correct.

The massive influx of Alfurnan migrants put on hold the observance of individual

determination of refugee status and made way for temporary protection. 7Considering the

large-scale movement of Alfurnan refugees to Rutasia, it would be impossible for the

latter to make individual determination whether the former fall within the scope of the

obligations under which refugees are protected. Given the very nature of mass influx,

only minimum standards of immediate treatment can be demanded from Rutasia. It has

been acknowledged that individual procedures under the 1951 Convention can be kept

“on hold” for use if or when it becomes necessary to determine individual protection

needs and consequent State responsibilities.8 It cannot be denied that it has adopted

“temporary protection” to extend protection and assistance to the group in accordance

with the Article 31 of the 1951 Convention without initially going into individual status

determinations. The temporary protection may continue until finding of a durable

solution.9 Rutasia did not exercise non-refoulment, thus this act is permitted by the

UNHCR.10

Rutasia cannot be expected to create international standards detention centers for

the purpose of processing Alfurnians migrants. This is too much to expect from the

detaining country. At best, the detaining country is expected to provide the best care for

the detained migrants as much as it is capable of. It cannot be expected from the

detaining State to go out of its way to create structures and facilitate the processing of a 7 UN High Commissioner for Refugees, Draft report of the 21 June 1995 inter-sessional meeting of the Sub Committee of the Whole on International Protection, 6 September 1995. EC/1995/SCP/CRP.4. Online. UNHCR Refworld, available at:http://www.unhcr.org/refworld/docid/3ae68cbf20.html [accessed 28 November 2013]

8 Ibid.

9 U.N.H.C.R. ExCom, Conclusion 22(XXXII), Protection of Asylum-Seekers in Situations of Large-Scale Influx, U.N.Doc. A/AC.96/601 (Oct. 21, 1981).

10 U.N.H.R.C., Report of the United Nations Commissioner for Refugees to the Economic and Social Council, ¶22, U.N.Doc. E/1985/62 (1985).

21

migrant. Therefore I rule on the side of the Rutasia.

IV. Whether the seizure of the Alfurnan assets by Rutasia violates international

law?

Domestic Law provides, a contract is the law between parties. It binds the parties

who intentionally enter into that contract in so much as to the provisions that was placed

and signed in the Contract. As they say, it is the law between them. And knowing that

these parties or those who created and contracted are the representatives of their

respective States, it can certainly be concluded that they know what they are doing but

more importantly that what is provided in the contract is certainly advantageous to their

respective States.

The provisions of Climate Change Loan Agreement (CCLA) which provides a

default clause which stated:

“Default: 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, 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

It can be proven that the seizure of assets of Alfurna by Rutasia is consistent with

international law as provided by the CCLA issued and agreed by the two (2) States.

22

A creditor gives loan to a debtor with the utmost belief he will be paid back after

a certain period of time. This is what to expect in a loan agreement between parties, either

if a State, Corporation, or a mere human acting in his own behalf. It therefore can be

concluded that a creditor in protection of his loan will do everything in his power and

right to be repaid of his loan. This is the situation that transpired between the State of

Alfurna and Rutasia.

Rutasia as provided by in the CCLA specifically the default provision merely

satisfied its credit by taking the assets of Alfurna. Rutasia repeatedly demanded payment

of the debt of Alfurna from their government. But instead of compromising for a

settlement in payment of debt it did not give attention to such action demand. However

unfortunate the situation of the Alfurnians may be, its government neglected their duty to

their creditor as stated by the counsel of Rutasia. It is therefore Rutasia’s right to claim

the assets of the Alfurnians as provided by the default clause without undergoing

arbitration.

Wherefore, I rule in favor of the claims of Rutasia in the Issues of II, III, and IV.

23