dmh 2016 compromis - deakin law students'...

17TH D.M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE

INTERNATIONAL MOOT COURT COMPETITION

11TH -‐ 14TH FEBRUARY, 2016

HOSTED BY: IN ASSOCIATION WITH:

D. M. HARISH FOUNDATION

INTERNATIONAL COURT OF JUSTICE

COMPROMIS BETWEEN THE FEDERAL REPUBLIC OF RATANKA AND CONFEDERATION OF

UNITED PROVINCES (APPLICANTS)

AND THE REPUBLIC OF ANGHORE (RESPONDENT)

TO SUBMIT TO THE INTERNATIONAL COURT OF JUSTICE

THE DIFFERENCES BETWEEN THE PARTIES

CONCERNING DIPLOMATIC PROTECTION, SAFE PASSAGE AND EXTRADITION OF BOBERT TIRES

Jointly notified to the Court on 12 October 2015

17TH D. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION, 2016 | 1

JOINT NOTIFICATION

ADDRESSED TO THE REGISTRAR OF THE COURT:

The Hague, The Netherlands, 12 October 2015

On behalf of the Federal Republic of Ratanka and Confederation of United Provinces (the

“Applicants”) and the Republic of Anghore (the “Respondent”), in accordance with

Article 40(1) of the Statute of the International Court of Justice, we have the honour to

transmit to you an original of the Compromis for submission to the International Court of

Justice of the Differences between the Applicant and the Respondent concerning the

Diplomatic Protection, safe passage and Extradition of Bobert Tires, signed in The Hague,

The Netherlands, on the twelfth day of October in the year two thousand and fifteen.

______________________ ______________________

Ambassador of the Federal Republic of

Ratanka to the Republic of Anghore

Ambassador of the Republic of

Anghore to the Federal Republic of Ratanka

Ambassador of the Confederation of

Provinces to the Republic of Anghore

Ambassador of the Republic of

Anghore to Confederation of United Provinces


COMPROMIS

SUBMITTED TO THE INTERNATIONAL COURT OF JUSTICE BY

FEDERAL REPUBLIC OF RATANKA AND CONFEDERATION OF PROVINCES

(Applicants) AND REPUBLIC OF ANGHORE (Respondent)

ON THE DIFFERENCES BETWEEN THEM CONCERNING

THE DIPLOMATIC PROTECTION, SAFE PASSAGE AND EXTRADITION OF BOBERT TIRES.

The Federal Republic of Ratanka and Confederation of United Provinces and the Republic

of Anghore

Considering that differences have arisen between them concerning the Diplomatic

Protection, Safe Passage and Extradition of Bobert Tires;

Recognising that the Parties concerned have been unable to settle these differences by

negotiation;

Desiring further to define the issues to be submitted to the International Court of Justice

(hereinafter referred to as the “Court”) for settling this dispute;

In furtherance thereof the Parties have concluded the following Compromis:

Article 1

The Parties submit the questions contained in the Compromis (together with Corrections

and Clarifications to follow) to the Court pursuant to Article 40(1) of the Statute of the

Court.

Article 2

It is agreed by the Parties that The Federal Republic of Ratanka and Confederation of

United Provinces shall act as Applicants and the Republic of Anghore as Respondent, but

such agreement is without prejudice to any question of the burden of proof.

Article 3

(a) The Court is requested to decide the Case on the basis of the rules and principles of

international law, including any applicable treaties.


(b) The Court is also requested to determine the legal consequences, including the rights

and obligations of the Parties, arising from its Judgment on the questions presented in the

Case.

Article 4

(a) Procedures shall be regulated in accordance with the applicable provisions of the

Official Rules of the 2016 D.M. Harish International Law Moot Court Competition.

(b) The Parties request the Court to order that the written proceedings should consist of

Memorials presented by each of the Parties not later than the date set forth in the Official

Schedule of the 2016 D.M. Harish International Law Moot Court Competition.

Article 5

(a) The Parties shall accept any Judgment of the Court as final and binding upon them and

shall execute it in its entirety and in good faith.

(b) Immediately after the transmission of any Judgment, the Parties shall enter into

negotiations on the modalities for its execution.

In witness whereof, the undersigned, being duly authorised, have signed the present

Compromis and have affixed thereto their respective seals of office.

Done in The Hague, The Netherlands, This twelfth day of October in the year two

thousand and fifteen, in triplicate in the English language.


COMPROMIS

1. Bobert Tires is a national of Scandinatia. After completing his undergraduate

education and qualifying with a joint degree in law and political science, Bobert Tires

went to Federal Republic of Ratanka (“Ratanka”), to pursue a Master’s Degree. He

obtained an LLM degree in International Legal Studies from a reputed university in

the capital city of Ratanka. During his further studies he did an internship with a

Member of Parliament, the legislative organ of the Government in Ratanka. The

requirement for doing such an internship was to maintain strict confidentiality in

respect of any official documents including discussion papers to which an intern may

have access. After Bobert Tires graduated with a Master’s Degree, the Ministry of

External Affairs of Ratanka appointed him as an advisor on foreign legal issues.

2. The Ministry of External Affairs in Ratanka oversees the functioning of the Foreign

Intelligence Agency (“FIA”). The FIA is a part of the executive administration of the

Government of Ratanka. Scholars in Ratanka have questioned the legal basis for its

authority and functioning. In fact, the Ratanka Civil Liberties Union (“RCLU”) has

filed a class action petition, which is pending before, the 9th District Circuit Court in

Ratanka. This class action petition seeks as its final relief the immediate

discontinuation of the FIA and in the alternative, the framing of legislation to regulate

the functioning of the FIA and to make the same transparent. Briefly stated, Ratanka’s

response to the class action petition is that the FIA is a part of the executive set up of

the Ratanka and the requirement for a legislation to justify its existence and

functioning is antithetical to the written Constitution of Ratanka, which is premised

upon the theory of Separation of Powers.

3. Bobert Tires signed a contract of engagement with Ratanka when he was appointed

as an advisor. The contract of engagement contained various waivers of rights by

Bobert Tires. These were considered necessary because of the sensitivity of a foreign

national working for the Ministry of External Affairs. One of the clauses in this

contract provided that in the event of Ratanka believing that Bobert Tires has acted

against the interest of Ratanka in the performance of his duties either in Ratanka or

whilst abroad, Bobert Tires accepts the jurisdiction of the Courts of Ratanka to

adjudicate upon such matters. When Bobert started working for the Ministry, he did


not have any connection with matters being investigated by the FIA. Over time, given

his commendable performance and the trust that was reposed in him, Bobert Tires

was asked to work on a White Paper for discussion on the compliance of investigative

modes and methods adopted by the FIA with foreign legal requirements and

standards. Whilst working on this White Paper, Bobert Tires accessed files and

documents over the last fifteen years of the FIA. Amongst other things these

documents disclosed that the FIA had been using state of the art technology and a

network of agents in foreign jurisdictions to gather information including: recording

of conversations between foreign heads of states, details of military and defence

acquisitions and the development of space programs of various countries. On

discovering the means and methods adopted by the FIA and the pervasive and

comprehensive data gathered by the FIA, Bobert Tires became disillusioned and

began questioning the practices of the FIA. By reading through FIA’s files and

documents, Bobert Tires learnt of the manner in which this information was

protected on digital formats and the codes to access the digital formats, which stored

this information. After two years of working on the White Paper and seven days

before Bobert Tires was to be interviewed for grant of citizenship by Ratanka

(Ratanka recognises dual nationality), Bobert Tires left Ratanka for the Confederation

of United Provinces (“CUP”).

4. The laws of CUP recognize the right of free speech as a basic right with reasonable

restrictions. On 28th January, 2012 an association was formed by expatriates and

immigrants having permanent residence in CUP, known as the One World Alliance

(“OWA”). The object of this association was to highlight how international

organisations and institutions, such as the United Nations, World Trade Organisation

and major political organisations across the world were completely dominated by the

larger global economies and military powers and that there was systemic

discrimination against smaller countries in the functioning of these international

organisations. OWA’s campaign was to highlight how smaller countries and in

particular developed countries that have acceded to the membership of these

organisations had compromised their sovereignty to a significantly greater extent

than larger and well-‐developed economies.


5. Bobert Tires came into contact with members of the OWA within a month of being in

CUP. He learnt about the activities of the organisation and identified with their

campaign. He was told that their campaign was suffering because they were not able

to adequately expose the hegemony of larger and developed states. Bobert Tires soon

began to informally advise them on how to take their message to the public at large.

He said that OWA must exploit social media to reach out to the people of not just CUP

but the world over to advance their campaign.

6. OWA then set up an account on Facebook and Twitter. Initially, the response was

tepid as, perhaps, the information and content published by OWA was too theoretical.

On 7th March 2014, the Facebook and Twitter account of OWA carried a post: “The

world’s powers intimidate ambassadors and representatives of smaller countries not to

raise certain subjects and issues of discussion at the course of discussions in the United

Nations. And we will expose this.”

7. After OWA’s post indicating a forthcoming exposé, OWA’s Facebook & Twitter pages

saw a monumental rise in its followers and data traffic on its social media pages.

Within days of its announcement to reveal such information, OWA published, on its

social media pages, a link to a website. The website set what appeared to be

transcripts of a conversation, between the Heads of State of Granje and Alleja, two

Lesser Developed Countries, supposedly recorded at United Nations Sustainable

Development Summit, 2008. Ratanka about the ‘incentives’ offered the conversation

transcribed to them for a giving up their demands for recognising certain agriculture

produce as ‘geographical indications’ and consequently allowing big Ratanka

corporations to claim intellectual property rights over similar products. The

conversation displayed on the website did acknowledge that the people of Granje and

Alleja would suffer but referred to the pay-‐out being too substantial to overlook. The

conversation then trails off with Head of State for Alleja saying “... and if we don’t, it

will be just as bad as economic sanctions without it actually being a sanction, so we will

not even be able to protest it.”

8. This information was immediately lapped up by mainstream media around the world,

evoking mixed reactions, with many denouncing what was dubbed as Ratanka’s

“strong armed” practices while some questioned the authenticity of OWA’s


information. In the week after the release, “OWA” was the search term with the most

significant growth worldwide as measured by Internet search engines like Google.

9. This was followed by many more such frequent leaks, where OWA began publishing

diplomatic cables, containing sensitive information, which OWA claimed were

received from an anonymous source. The contents of the diplomatic cables including

numerous unguarded comments and revelations regarding: critiques and praises

about the host countries of various Ratankian embassies; political manoeuvring

regarding climate change; discussion and resolutions including those that are part of

bilateral talks between States not involving Ratanka towards ending ongoing tension

in oil producing nations; efforts and resistance towards nuclear disarmament; actions

in the war on terror; particularly measures taken by other States to deal with non-‐

state actors . This came to be known in contemporary media as the ‘Communigate’

scandal and OWA claimed that it was “...the largest leak of diplomatic cables and State

records in history...”

10. This gave rise to large-‐scale dissatisfaction against the practices and policies of the

Government of Ratanka, on the international level. Faced with such widespread

public discontent, Ratanka’s Ministry of External Affairs, through diplomatic

channels, requested CUP to take immediate affirmative action against the OWA. On

4th May, 2014, Ratanka’s Minister of External Affairs, Mr. Henis Kampberg, met with

his counterpart of CUP. At that meeting, Mr. Henis Kampberg reiterated that the

information being published by OWA was part of the intelligence gathered by

Ratanka and were ‘State Secrets and State Property’ and in light of the same, CUP was

expected to take steps to prevent OWA from publishing such information and that

inaction on the part of CUP would be understood by Ratanka to be an irretrievable

breakdown of diplomatic relations.

11. Considering the gravity of the leaks and the secretive nature of the information

therein, the FIA began its own investigation to ascertain how such information had

been leaked. As part of its investigation FIA probed into the profiles and status of the

employees and ex-‐employees of the Ministry of External Affairs of Ratanka (being

about 3500 in no.) who may have had access to such information. The FIA narrowed

down on Bobert Tires as the likeliest sources of the leaks.


12. One week later the Minister of Home Affairs, blocked OWA’s website on which such

information was being displayed. OWA filed a petition challenging the action of the

Government of CUP in the High Court Queen’s Bench Division, praying for the

immediate activation of OWA’s website. OWA argued that such an action on the part

of CUP’s govt. was against the right of free speech which was ‘inviolable and

protected’ under the laws of CUP. The High Court Queen’s Bench Division while

delivering its judgement on 11th July 2014 upholding the right to free speech, stated

that the deactivation of OWA’s website would be an act of ‘excessive pre-‐censorship’

and accordingly partly allowed the petition, observing that the Government of CUP

had not brought an action against any particular posts that were specifically

inflammatory on an international scale and which could therefore be perceived as

being covered under the reasonable restrictions exception to the right to free speech.

It said that if an appropriate action is brought against a specific release of information

that would be considered independently to determine if it jeopardized the safety and

security of CUP or its friendly relations with foreign States. CUP has appealed against

this judgment, which is presently pending in the Court of Appeal, Civil Division.

13. On 9th September, 2014, OWA released a report on its website detailing the illegal

activities undertaken by Ratanka in a territory outside the mainland of Ratanka. The

report stated that at these detention camps there was rampant torture of ‘prisoners

of war’ in specialised concentration facilities in contravention of Article 16 of the UN

Convention on Torture. The Ratankian Army had in the past repeatedly denied these

allegations and said that these reports evoke a false sense of sympathy for the worlds

most hardened terrorists. The report in fact stated that such is the disdain that

Ratanka has for international law and the law of foreign states; that it does not even

bother to determine if its methods are permitted by the laws of foreign states.

14. On 9th September 2015 the OWA published each country’s negotiating position to a

proposed multilateral convention to identify and codify the civil use of nuclear energy

and power. The Nuclear Annex sought to regulate state schemes for nuclear power

stations and associated industries.

15. On 2nd October, 2014, Ratanka’s official response to the Communigate scandal was

published online, wherein Mr. Henis Kampberg was quoted as stating that ‘Mr. Bobert

Tires had been declared as an enemy of the State, responsible for leaks to OWA & that


OWA was a terrorist organisation that was functioning as a rogue association and it

was a threat to global security.’ He said “Bobert Tires must be brought to justice and

prosecuted in Ratanka”

16. Ratanka’s lawmakers and called for Bobert Tires to be charged with espionage or for

conspiracy to obtain secret documents, arguing that he intended to sabotage

Ratanka's foreign policy and endangered lives of Ratankians by revealing all of the

above information.

17. On 12th October, 2014 Bobert Tires was arrested by the CUP’s Criminal Investigation

Division, and produced before a Magistrate’s Court. The Magistrate’s Court granted

bail to Bobert Tires under the provisions of Bail Act, 1932. However, as a condition to

the grant of bail, Bobert Tires was required to immediately hand over his

Scandinatian Passport and travel documents as security for his surrender into

custody.

18. Simultaneously, authorities in Ratanka began criminal investigations against Bobert

Tires with a view to prosecute him under the Ratanka Espionage Act, 1917.

Ratanka’s Attorney General was quoted as stating that there was “an active, ongoing

criminal investigation into OWA and Bobert Tires”. It emerged through newspaper

reports that Bobert Tires and others were likely to be formally indicted on various

charges including “treason, sedition and communicating national security

information to an unauthorized source”, “theft of Ratankian Government property”,

and “causing to be published, intelligence belonging to the Federal Government of

Ratanka, having knowledge that intelligence published on the internet is accessible to

the enemy” and also “aiding the enemy,”. A conviction under a scheme of these

charges was punishable with Capital Punishment

19. Bobert Tires complied with this condition. He was thereafter released on bail. While

he was out on bail, Bobert Tires came in contact with Ms. Tolo Koure, an Executive

Assistant to the Ambassador of the Republic of Anghore (“Anghore”) in CUP.

Anghore is a lesser developed nation. Tolo Koure while sympathising with Bobert

Tires, expressed admiration for the work carried out by OWA and advised him to

meet with the Ambassador of Anghore. A tabloid in CUP, known as ‘The Moon’

photographed Bobert Tires outside the Embassy of Anghore and published the


photograph captioned: “One Nation’s Traitor is another’s Messiah! Clandestine

discussions with the OWA Mastermind!”

20. A week later Anghore announced that Bobert Tires had been granted political asylum,

and that Bobert Tires was at the Anghorian Embassy in CUP. The following day, the

Ambassador of Anghore confirmed that Bobert Tires could stay at the embassy

indefinitely. Anghore reasonably believes that he [Bobert Tires] may become a victim

of political persecution.

21. On 22nd October, 2014 Ratanka issued an Extradition Request to CUP under the

provisions of the Extradition Treaty of 2003 (“BET”) between Ratanka and CUP, on

the grounds that Bobert Tires was required to be tried in Ratanka, for various crimes

committed by him. The Government of CUP approached the Anghorian Embassy for

the immediate release of Bobert Tires for his deportation to Ratanka for trial. CUP

maintained that the grant of political asylum was in itself an illegal and void act given

that Bobert Tires was on bail at the time.

22. However, the Anghorian Embassy refused to release Bobert Tires, maintaining that

the action against him was politically motivated and posed an imminent threat to his

life. The Anghorian Embassy as stated that it was not obliged to release Bobert Tires,

since it was under no treaty obligation and that there was “strong evidence” that

Bobert Tires faced possible persecution for political offences in the event that he was

released.

23. In response to this, CUP stationed officers of its Metropolitan Police Service outside

the Anghorian Embassy to arrest Bobert Tires should he try to leave. The situation on

the ground became a live siege of the Embassy and Anghore complained that CUP was

violating Diplomatic Privileges by regulating the functioning of Anghorian Embassy

by restricting access of people and provisions

24. On 15th December, 2014 Ratanka and CUP declared that they were imposing a trade,

economic, and financial sanction against Anghore, and that such an embargo had

been declared indefinitely. The stated purpose of the embargo was to maintain

sanctions on Anghore so long as Anghore refused to “place value on the maintenance

of international peace and take substantial measures against the harbouring of

terrorists and fugitives”. In response to this, Anghore wrote to the United Nations,


stating its position that the embargoes be lifted, describing them as an act of force

and a violation of International Law.

25. Scandinatia and CUP are also signatories to a Multilateral Extradition Treaty of 1995

(“MET”) under which, if an arrest warrant is issued by any of the signatory states, it

is valid throughout all other states that are signatories to the treaty. Once an arrest

warrant is issued under MET, it requires a signatory state to arrest and transfer a

criminal suspect or sentenced person to the issuing state so that the person can be

put on trial or complete a detention period. Ratanka is not a signatory to MET.

26. On 28th December 2014, while Bobert Tires was staying at the Anghorian Embassy,

Scandinatia issued an arrest warrant against Bobert Tires for allegedly sexually

assaulting two women, in 2008, prior to him having left for Ratanka.

27. Scandinatian prosecutors sought for Bobert Tires to be extradited to Scandinatia, and

Anghorian officials expressed concern over the fact that the Scandination arrest

warrant was only a means to cause Bobert Tires lose his status of protection so that

he could be extradited to Ratanka. Scandinatia called Anghore's decision “completely

absurd” and “an abuse of the asylum instrument,” Subsequently, Anghorian officials

contacted Scandinatian authorities to secure an assurance that, if extradited to

Scandinatia, Bobert Tires would not be extradited to Ratanka. There has, however,

been no response received from Scandinatia to this proposal.

28. Soon, after he began his stay at the Anghorian Embassy, it was reported in local

media that Bobert Tires had developed a potentially life threatening heart defect and

a chronic lung condition and was battling for life, within the confines of the

Anghorian Embassy. It was also reported that the requisite medical care could not be

provided to him, as he was unable to leave the Anghorian Embassy for fear of being

arrested. This report was ratified in an official statement issued by the Anghorian

Embassy a week later, stating that Bobert Tires was out of danger and had been

stabilised, but there was fear that his condition could worsen and his health could

deteriorate if remedial measure were not undertaken and he was not given prompt

and adequate medical care. The Anghorian Embassy also stated that the Anghorian

Government had agreed that Bobert Tires could be hospitalised for specialised

treatment in Anghore.


29. The Anghorian Embassy wrote to the Government of CUP expressing hope that CUP

would respect its decision and allow Bobert Tires the right to leave for Anghore

without any right to arrest, on humanitarian grounds. The Government of CUP

rejected this request, on the grounds that the purported illness of Bobert Tires had

not been verified by CUP and as such they could not process the same.

30. In the meantime disclosure of information by OWA continued but with less

frequency.

31. Given the impasse, Ratanka, CUP and Anghore agreed to have the dispute referred to

the International Court of Justice for adjudication under Article 40(1) of the ICJ

Statute. The question of admissibility of claims and standing to bring particular

claims was however kept open.

32. Given the interests of Ratanka and CUP are aligned, other than two separate

references it was agreed that they could be co-‐applicants.

33. Broadly, Ratanka and CUP contend that Anghore is bound to honour the extradition

request and the grant of political asylum is contrary to International Law. CUP further

contends that Anghore is subverting its judicial process and its commitment to

foreign status. Anghore refutes this and further contends that Ratanka has breached

International Law by the manner and nature of information gathered by the FIA. It

also claims that Bobert Tires is allowed safe exit to Anghore on humanitarian

grounds. Further, it claims that the siege of the Anghorian Embassy is a violation of

International Law.

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