TEAM CODE: TEAM OF IMPACT (33)

B EFORE THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PLACE

THE HAGUE , THE NETHERLANDS

APPLICANT: UNITED REPUBLIC OF ARITON

RESPONDENT: DEMOCRATIC STATE OF RAZON

WRITTEN SUBMISSION FOR THE RESPONDENT

INTER BATCH MOOT COURT COMPETITION

2020
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TABLE OF CONTENTS

INDEX OF AUTHORITIES 03

MEASURES AT ISSUES 06

STATEMENT OF FACTS 07

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INDEX OF AUTHORITIES

Cases

1. Colombia v. Peru
2. Erika Feller, Volker Türk and Frances Nicholson
3. Bosnia and Herzegovina v. Yugoslavia
4. Islamic Republic of Iran v. United States of America (1996n12 December General
List No. 90)
5. Netherlands v. Belgium(Series A/B No 70 - Series C No 8I)
6. Nicaragua v. United States (27 JUNE 1986 JUDGMENT)

Conventions, Acts, Legal Decisions

1. The Universal Declaration of Human Rights(UDHR)

2. The International Covenant on Economic, Social and Cultural rights (ICESCR)
3. International Health Regulations 2005(IHR)
4. Charter of The United Nations
5. The Convention Relating to The Status of Refugees
6. Permanent Court of International Justice(PCIJ)
7. Protocol relating to an amendment to the I Convention on International Civil Aviation
8. The Chicago Convention

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Books, Journal, Articles and Others

1. What is the Universal Declaration of Human Rights?

2. Definition of non-political crime
3. Värk, René. "Diplomatic Asylum: Theory, Practice and the Case of Julian Assange."

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MEASURES AT ISSUES

a. Razon did not violate international law by applying its entry regulation to Ariton,
and even if it did, it should not be required to compensate Ariton for any claimed economic
losses;

b. Razon did not violate international law by refusing to hand over Ms. Sakurato the
Aritonian authorities;

c. The Court may exercise jurisdiction over Razon’s counter-claim concerning the
Amaterasu Airways aircraft; and

d. Ariton violated international law by shooting down the aircraft.

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STATEMENT OF FACTS

There are two countries called Ariton and Razon. They are both developed, democratic
nations. But their economic source is different. They do not allow their citizens to have dual
citizenship. Ariton is famous for tourism. An average of nine million tourists come here and
the sector earns 7.5 billion euros every year. 65% of these tourists are related to the Razon. In
March 2018, the first C-VID-18 virus was created in Sato. And six people are died. A total of
22 organizations including NBL and CBI started research work to develop the virus vaccine.
All NBL employees have to make an unpublished agreement. The virus is transmitted from
the human to the human body. On April 20, 2018, WHO declared the virus a public health
emergency of international concern. Razon has six rules for non-Razonian citizens to enter to
protect their country's citizens from the virus. And the president of the Razon, Orochimaru,
addressed the nation's cause and explained the six rules. To prevent the spread of the virus,
Razon’s Health Minister, Sasuke Uchiha has been informed of the WHO and encouraged
other countries to do so. On the other hand, Aritton did not give entry regulation to prevent
the virus. As of May 15, 2018, 15,274 people were infected and 212 people died in 65
countries in C-VID-18. 3 June 2018, Ms. Sakura published in a tweet that eight NBL officials
had C-VID-18 symptoms and NBL officials keep it a secret. The Ariton police went to Ms.
Sakura’s house to catch her, but Ms. Sakura's life was threatened and she ran through the
back door and he took refuge in the consulate of Razon. Video conferencing between
President Orochimaru of Razon and Prime Minister Tsunade of Ariton on 4 June 2018. And
Prime Minister Tsunade acknowledges that two NBL officials are C-VID-18 positive. Then
Razon declared Ariton is a high-risk country. Ariton filed three charges against Ms. Sakura's
for tweet. Ariton claims Razon violated international law by using entry regulation. Ariton
demands to remove their country names from the list of high-risk countries. Interpol warns
Rezon and Aritton about Akatsuki. On June 26, the Air Force of Ariton crashed an
Amaterasu Airways aircraft. Tsunade said, our air force failed to contact the pilot of the
plane. So, our air force crashed that plane. Ariton filed a case against Razon. Rezon wants to
defend against Ariton. And Ariton demanded a counter.

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SUMMARY OF ARGUMENTS

1. Razon’s entry regulation is based on scientific evidence. Every citizen has freedom to
travel but when health is at risk it can be lost. When WHO declared C-VID-18 as an
international concern, Razon issued a ban on entry. Article 12(3) of the ICCPR allows
restrictions on the right to freedom of movement for reasons of public health and
national emergency.
2. Razon did not violate international law by refusing to hand over Ms. Sakura to the
Aritonian authorities. Because diplomatic asylum is used to denote asylum granted by
a State outside its territory. The Universal Declaration gives rise to a range of other
international agreements which are legally binding on the countries that ratify them
which include ICCPR and ICESCR. The term non-political crime means a crime,
which is not of a political character, or a crime, which does not involve opposition to
the government of a country on an issue connected with the political control or
government of that country.
Possible prosecution might have been an actual concern only if the violation had
occurred for disclosing information regarding Ariton’s national concern, but rather the
disclosed information concerned, concealment of news regarding the outbreak of J-
VID 18, a public health emergency of international concern declared by WHO
Director-General .
3. Here, Ms. Sakura has expressly asked for asylum and Razon has granted her asylum
which means Ms. Sakura has to be considered as a refugee of Razon. That Article 1 of
the Convention Relating to The Status of Refugees defines a refugee as a person who
is outside his/her country of nationality or habitual residence; has a well-founded fear
of persecution because of his/her race, religion, nationality, membership in a
particular social group or political opinion; and is unable or unwilling to avail
himself/herself of the protection of that country, or to return there, for fear of
persecution. Article 14 makes it clear people cannot be granted asylum simply to
avoid prosecution for “non-political crimes or acts contrary to the purposes and
principles of the United Nations .” So, war criminals, and those guilty of a crime
against the peace or a crime against humanity, do not qualify for asylum.

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4. According to Article 3bis of the 1948 Protocol relating to an amendment to the I

Convention on International Civil Aviation, “the contracting States recognize that
every State must refrain from resorting to the use of weapons against civil aircraft in
flight and that, in case of interception, the lives of persons on board and the safety of
aircraft must not be endangered. It is recognized that every State, in the exercise of its
sovereignty, is entitled to require the landing at some designated airport of a civil
aircraft flying above its territory without authority, it may also give such aircraft any
other instructions to put an end to such violations, and for this purpose, the
contracting States may resort to any appropriate means consistent with relevant rules
of international law, including the relevant provisions of this Convention, specifically
paragraph (a) of this Article . If there had been confusion that the aircraft was rather a
military aircraft or State aircraft, only then this incident could have been excluded
from this article and accordingly there would be no violation in context of this Article.
The fact that the aircraft may have strayed into unauthorized airspace provides no
justification whatsoever for an attack on the aircraft There remains no uncertainty that
Ariton has violated the Convention on International Civil Aviation by shooting down
the ‘civilian aircraft’ as it is strictly prohibited.
Violation of UN Charter Article 51 of the UN Charter states that “nothing in the
present Charter shall impair the inherent right of individual or collective self-defense
if an armed attack occurs against a Member of the United Nations, until the Security
Council has taken measures necessary to maintain international peace and security” .

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LEGAL PLEADINGS

Issue 1

Razon did not violate international law by applying its entry regulation to Ariton, and
even if it did, it should not be required to compensate Ariton for any claimed economic
losses.

A. As a sovereign state the entry regulation is a measure of self-preservation.

I. The entry regulations is in accordance with International law

The Health Ministry of Razon conducted an urgent and intensive risk assessment taking into
account what it called the best scientific evidence and published a regulation governing entry
into the country1 and Section 3 exclusively mentions a list to be updated namely ‘high risk
countries’ who are specifically restricted from entering Razon’s territory.

Freedom of movement is a human right protected by domestic laws and international treaties,
including the Universal Declaration of Human Rights 2 and the International Covenant on
Civil and Political Rights (ICCPR)3. Both documents guarantee the right of everyone to leave
any country including their own country and to return to it. They also protect the right of
everyone lawfully in a country to move freely within the territory of that country.
Concurrently, everyone has the right to a standard of living adequate for the health of himself
and of his family4. Also, the right of everyone to the enjoyment of the highest attainable
standard of health, and asks governments to take steps to prevent threats to public health and
to provide medical service to those who need it 5.

Most importantly article 12(3) of the ICCPR allows restrictions on the right to freedom of
movement for reasons of public health and national emergency. According to the Siracusa
Principles – principles that determine the conditions under which restrictions on civil liberties
are justified – any steps taken to protect the public and limit people’s rights and freedoms
must be “legal, proportionate and necessary”. When the WHO Director-General declared the
outbreak as a public health emergency of international concern, issuing ‘Temporary

1
Para 10 Fact Sheet
2
Article 13
3
Article 12
4
Article 25 of the Universal Declaration of Human Rights
5
Article 12 of the International Covenant on Economic, Social and Cultural rights (ICESCR)

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Recommendations’ 6
were rather unsatisfactory and the measures taken by the Health
Ministry was in accordance with both national and international law in order to protect the
health of Razon’s citizens.

II. Application of entry regulation to Ariton did not violate international law

On 15th May 2018, 65 countries had reported a total of 15,274 confirmed cases and 212
deaths from C-VID-18 whereas no other country including Ariton and Razon had any
suspected or confirmed cases in their region 7 . The concealment of information by NBL
authority of the suspected cases was eventually communicated 8 and the Razon’s side
expressed disappointment that Ariton failed to inform Razon of the suspected cases from the
very beginning9. President of Razon also added that her Government intended to add Ariton
to its list of ‘high-risk countries’ without further notice, unless Ariton properly managed the
outbreak of the virus10. From 4-6 June the confirmed cases raised to 9 persons from only 2
persons11 and all of them were NBL staffs.

Ariton was instantly enlisted in the list of ‘high-risk countries’ as what the scenario suggested
that despite declaring quarantine in Segura Province and taking so called ‘lockdown’ the
Government of Ariton clearly failed to control the outbreak just in the NBL lab and therefore
leaving with huge uncertainty as to what the actual number of confirmed cases might there
be.

Enlisting Ariton in the list of ‘high-risk country’ clearly was the right approach at times of
this pandemic and also the Government acted in accordance with national law as well as
international law.

B. Razon’s entry regulation is in consistent with IHR.

I. The entry regulation is in accordance with article 43 of IHR (International

Health Regulations).

6
Para 8
7
Para 14
8
Para 21
9
Para 23
10
Para 26
11
Para 29

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These Regulations shall not preclude States Parties from implementing health measures, as
long as it is to combat specific public health risks or public health emergencies of
international concern. 12 Through this provision WHO is making the option to take extra
precaution available to its party states. And according to paragraph no 8 of the agreed
compromise, On 20 April 2018, the WHO Director-General declared the outbreak of C-VID-
18 a public health emergency of international concern (“PHEIC”). 13 And as J-vid 18 was
declared public health emergency of international concern (“PHEIC”) Razon had all the
rights to implement an extra precautionary measure. And according to IHR it has to be done
with the purpose of achieve the same or greater level of health protection than WHO
recommendations, 14 which was our purpose to begin with to protect our national interest.

Even though IHR suggests Such measures shall not be more restrictive of international traffic
and not more invasive or intrusive to persons than reasonably available alternatives that
would achieve the appropriate level of health protection. 15 But we had no other alternative in
our hand in order to protect our nation and nationals, if we read the paragraph 7 of the agreed
compromise it states that, The Sato Health Ministry scientists determined that the virus was
capable of human-to-human transmission even when the host is not showing any symptoms
of being infected, which made the situation much more difficult for us, leaving us no way of
determining either a person is infected or not thus leaving us no other alternative than
implementing an entry regulation.

under Article 43(2), countries cannot implement additional health measures exclusively as a
precaution but must rather ground their decision making in “scientific principles”, “scientific
evidence”16 and according to The Sato Health Ministry scientists the virus was capable of
human-to-human transmission even when the host is not showing any symptoms of being
infected,17 and the cause of the disease as a previously unknown strain of virus 18 and thus no
particular medication was not available at that moment and as the virus was lethal in nature,
we were left no other option but to implement a measure to keep the outbreak outside our
territory.

12
Article 43(1) of the IHR (International Health Regulations) 2005
13
Paragraph no 7 of the agreed agreed fact sheete
14
Article 43(1) of the IHR (International Health Regulations) 2005
15
Article 43(1) of the IHR (International Health Regulations) 2005
16
Article 43(2) of the IHR (International Health Regulations) 2005
17
Paragraph no 7 of the agreed agreed fact sheete
18
Paragraph no 4 of the agreed agreed fact sheete

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And according to IHR, a state party implementing additional health measures referred to in
paragraph 1 of this Article which significantly interfere with international traffic shall provide
to WHO the public health rationale and relevant scientific information for it.19 And according
to paragraph 12 of the agreed compromise, On 23 April 2018, Razon informed WHO of the
entry regulation, and provided to the Organization the public health rationale and relevant
scientific information upon which the government relied. 20 Thus Razon has fulfilled all the
requirements and followed to procedure to implement an extra precautionary measure.

II. The entry regulation is in accordance with article 3 of IHR (International

Health Regulations).

C. The situation itself is an extra ordinary situation, thus the payment of compensation
is not necessary.

As the J-18 disease is quickly identified by the Sato ministry of health which is totally
unknown strain of virus.21 And for the outbreak of the C-VID-18, patients are diagnosed with
J-18, and they are reported to be in a critical situation. So, the outbreak of C-VID-18 situation
isn’t any normal situation. It's an extra ordinary circumstance. Therefore, the restrictions of
entry regulation are applied only for National security. Since the C-VID-18virus does not
spread in Razon. And for the wellbeing of the citizen of Razon. That's why the entry
restriction isn’t any flexible regulation. 22 It's a stringent provision.

Though there created some economic losses for giving the entry restrictions, but to protect
the lives of Razon citizens this small disruption is mandatory. And as the situation is an
extraordinary situation so to prevent the spread of virus, we should give this restriction
globally to protect public health, lives and also our economy. So, they are not obliged to pay
compensation.

Issue 2

Razon did not violate international law by refusing to hand over Ms. Sakura to the
Aritonian authorities.

A. Razon has the right to provide diplomatic asylum

19
Article 43(3) of the IHR (International Health Regulations) 2005
20
paragraph 12 of the agreed agreed fact sheete
21
paragraph 4 of the agreed agreed fact sheete
22
paragraph 11 of the agreed agreed fact sheete

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Generally diplomatic asylum is used to denote asylum granted by a State outside its
territory23 . It means granting of asylum to an individual, by a country, in its embassies,
legations, consulates etc.

I) Acceptance of Ms. Sakura as an asylee follows Universal Humanitarian Standards

Razon is a party to the International Covenant on Civil and Political Rights (ICCPR) and the
International Covenant on Economic, Social and Cultural Rights (ICESCR) 24. The Universal
Declaration gives rise to a range of other international agreements which are legally binding
on the countries that ratify them which include ICCPR and ICESCR 25. Since Razon is a party
to both of these international instruments, there remains no uncertainty as to Razon being
under an obligation to comply with Universal Declaration of Human Rights. The UN
GENERAL ASSEMBLY proclaims this UNIVERSAL DECLARATION OF HUMAN
RIGHTS as a common standard of achievement for all peoples and all nations, to the end that
every individual and every organ of society, keeping this Declaration constantly in mind,
shall strive to secure the universal and effective recognition and observance for these rights
and freedoms and by progressive measures, nationally and internationally26.

Everyone has the right to seek and to enjoy in other countries asylum from persecution 27 and
also, everyone has the right to leave any country, including his own, and to return to his
country 28 . More importantly this right may not be invoked in the case of prosecutions
genuinely arising from non-political crimes or from acts contrary to the purposes and
principles of the United Nations 29. The term non-political crime means a crime, which is not
of a political character, or a crime, which does 30not involve opposition to the government of
a country on an issue connected with the political control or government of that country. 31
Formal charge accusing Ms. Sakura of the violation of governmental non-disclosure
agreement32 clearly directs that this crime specifically involves opposing the government on

23
United Nations. "Question of Diplomatic Asylum. Report of the Secretary-General." UNHCR.
24
Para 54 of the Fact Sheet
25
https://humanrights.gov.au/our-work/what-universal-declaration-human-rights
26
Preamble of UDHR
27
Article 14(1) Of UDHR
28
Article 13(1) of UDHR
29
Article 14(2) of the UDHR
30
Article # of UDHR
31
https://www.lawinsider.com/dictionary/non-political-crime
32
Para 32 of the Fact Sheet

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an issue connected with the political control as NBL is Ariton’s State-owned and State-run
National Bioresearch Laboratory33.

Ms Sakurawas charged with three offenses under the National Penal Code 34 for disclosing
information of a ’non-disclosure agreement’, which was merely agreed as a condition of
employment and violation of which might have resulted in termination and ’possible
prosecution’ 35. Possible prosecution might have been an actual concern only if the violation
had occurred for disclosing information regarding Ariton’s national concern, but rather the
disclosed information concerned, concealment of news regarding the outbreak of J-VID 18, a
public health emergency of international concern declared by WHO Director-General36.

This action non-disclosing of apprehended outbreak 37 which eventually turned up to be

confirmed cases38 impliedly acknowledges the approval of jeopardizing the life, health and
thus security of countless lives as both Razon and Ariton at all relevant times accepted the
factual determinations that ’human-to-human transmission was possible during the incubation
period, and that infected individuals who never developed symptoms were capable of
39
spreading the virus to others . Safeguarding the person requiring shelter in such
circumstances is protection of his inherent right to life liberty and security40. Furthermore, no
one shall be held guilty of any penal offence on account of any act or omission which did not
constitute a penal offence, under national or international law, at the time when it was
committed41. At a time of public health emergency of international concern, the world was
already facing a substantial disorder for the virus was life threatening. There is no way Ms.
Sakura can be accused of an offence which would deny Razon the capability to grant her, as
under general international law, diplomatic asylum is accepted if accorded for the purpose of
saving life or preventing injury in the face of imminent threat 42.

II) Temporary asylum on urgency, is a right to be protected by Razon, justified against

political corruption

33
Para 5 of the Fact sheet
34
Para 32 of the Fact Sheet
35
Para 6 of the Fact Sheet
36
Para 8 of the Fact Sheet
37
Para 18 of the Fact Sheet
38
Para 27 of the Fact Sheet
39
Para 7 of the Fact Sheet
40
Article 3 of UDHR
41
Article 11(2) of UDHR
42
Värk, René. "Diplomatic Asylum: Theory, Practice and the Case of Julian Assange."

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When the Government of Ariton was telling the whole world that this country has not had a
single case of J-Vid 18, the Executive Director ordering the NBL Director to keep the whole
matter of two people at the vaccine project with reported syndromes confidential 43 is the
failure of a State run facility to fulfil its duty. Where Ariton reported ’significant progress’ in
developing a vaccine44 and that a further public statement was forthcoming, the state was so
overwhelmed to communicate its progress. Ariton not wanting to be one of those countries
with entry restrictions45 clearly suggests that the State’s ultimate aim was to prevent measures
that would create a change in their trade and economy.

Such measures support the action of violation of the right to freedom of expression which
includes a right to access information held by public bodies 46.

Ms. Sakura turned into a target, subject to political corruption in Ariton as her information
caused the State to be enlisted as a high-risk country47 and the charges brought against her
with a goal to detain her arbitrarily is in violation of international law 48 simply creates a duty
of Razon to ensure the fundamental human right of Ms. Sakura to seek and enjoy asylum in
other country 49 . As the police officers of Ariton arrived at her resident to question her
regarding the origins of the tweet and that they ended up chasing her 50 is evident enough that
the administration of justice was corrupted by measures clearly prompted by political aims
and that protecting her against imminent threat is rather an urgency sufficient enough to grant
her diplomatic asylum51. As the granting of diplomatic asylum is a right, not an obligation of
States52. It was also confirmed that exceptional cases of diplomatic asylum could be granted
if: such diplomatic asylum acts as a temporary measure to individuals in physical danger 53.
The United States controversially granted diplomatic asylum to dissident Hungarian Roman
Catholic József Cardinal Mindszenty, who was given refuge in the U.S. embassy in 1956 is
the proof that the measure taken by Razon is not actually a prohibition.

43
Para 21 of the Fact Sheet
44
Para 17 of the Fact Sheet
45
Para 13 of the Fact Sheet
46
Marcel Claude Reyes and Others v. Chile, 7 March 2005, Case No. 12.108.
47
Para 26 of the Fact Sheet
48
Article 9 of UDHR
49
Article 14(1) of UDHR
50
Para 20 of the Fact Sheet
51
The Haya De La Torre Case
52
The ICJ Asylum Case in 1950
53
The ICJ Asylum Case in 1950

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The case of Mr. Assange, who chose to seek asylum in the Ecuadorian embassy where he
asked for the protection of the Ecuadorian government, in which the Ecuadorian government
approved of, the case will expire in 2020 if no further evidence proved the incident of the
allegations then the granting of asylum shall prevail. The representative of the Soviet Union
admitted that in extreme cases humanitarian considerations would prevail54, perhaps in cases
such as this. Even if the receiving State does not recognise the right to grant diplomatic
asylum, it must respect the inviolability of the premises of diplomatic missions. In practical
terms, this leads to a forced, de facto acceptance of diplomatic asylum55

B. The acceptance in this context is not prohibited by any Customary International

Law

The position of Vienna Convention on diplomatic asylum is somewhat inconclusive but it

does not preclude diplomatic asylum. On 14 December 1974, following consideration of the
item by the Sixth Committee, the General Assembly adopted resolution 3321 (XXIX), which
reads as follows:

"Conscious of the fact that a number of States had granted diplomatic asylum and that several
conventions on this subject have been concluded in Latin America,

"Considering that it is desirable to initiate preliminary studies on the humanitarian and other
aspects of the question of diplomatic asylum, no voice was raised to deny the humanitarian
role of diplomatic asylum, and the humanitarian purpose of the review of diplomatic asylum
was essentially recognized universally56

Acknowledgement of this was made in several important contributions to the debate in the
Sixth Committee in 1974.

The representative of Ghana agreed with the representative of Israel's appreciation of the
historical background of the institution of diplomatic asylum. In Ghana it had been customary
for people to seek asylum in places of worship when their lives were in danger 57 . The
representative of Brazil referred to the history of the tradition of asylum in Europe and then
Latin America 58. The representative of Uruguay commented in the Sixth Committee debate

54
In the debates in the Sixth Committee of the General Assembly in 1974 (A/C.6/SR.1509, P.3)
55
The Case of Pedro Garcia Arredondo
56
In the debates in the Sixth Committee of the General Assembly in 1974 (A/C.6/SR.1504-1511)
57
(A/C.6/SR.1510, P. 14)
58
(A/C.6/SR-1505, pp. 6-7)

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in 1974 that it was surprising that the institution of diplomatic asylum should be regarded
with misgiving since the rights guaranteed were all recognized and protected by the Universal
Declaration of Human Rights and the United Nations Charter 59

The first objection is that the grant of diplomatic asylum is a derogation from the sovereignty
of the territorial State. The same objection can, however, be raised against every evolving
rule of customary international law and against every treaty commitment - because, in effect,
every such rule or commitment involves a limitation on the otherwise unrestricted power of
the State.

It is to be noted that the States of Latin America, which have always been emphatic about the
importance of their sovereignty, have seen nothing inconsistent therewith in the acceptance of
diplomatic asylum. However, as the representative of Uruguay pointed out in the debate of
the Sixth Committee in 1974, the Vienna Convention did not preclude the legitimate exercise
of the right of diplomatic asylum60

The second objection lies in the suggested inconsistency between the grant of asylum and the
status and functions of diplomatic missions. Reference was made in the Sixth Committee
debate in 1974 to the provision in article 41 of the Vienna Convention on Diplomatic
Relations that “the premises of the mission must not be used in any manner incompatible
with the functions of the mission as laid down in the present Convention ...”; and, it was said,
the grant of asylum was not such a use.

the representative of Colombia noted that during the century of Colombia's independent
existence diplomatic asylum had been granted more than 50 times in Colombia. The practice
had not had any adverse effect on the fraternal relations between Colombia and other Latin
American countries 61 The representative of Ghana said that no one had yet given any
concrete example of cases where the principle had been abused in Latin America. If there
were isolated cases, they certainly would not justify a condemnation of the principle itself 62.

There being no actual basis for denying diplomatic asylum and the positive recommendations
by states clearly denotes that diplomatic asylum is rather a historical tradition for ensuring
justice in international manner.

59
(A/C.6/SR.1506, p. 3).
60
(A/c.6/SR.1506, p. 4).
61
A/C.6/SR.1505, p. 8
62
(A/C.6/SR.1510, P. 15).

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C. Razon is under no international obligation to return MS. Sakura

I) The case of Haya De La Torre

Haya de la Torre was granted diplomatic asylum three months after the rebellion, which led
the Court to a conclusion that “there did not exist a danger constituting a case of urgency”.

The Court emphasised that diplomatic asylum is not, in principle, an opposition to the
operation of justice. But this happens “if, in the guise of justice, arbitrary action is substituted
for the rule of law”, more precisely “if the administration of justice were corrupted by
measures clearly prompted by political aims”.

In the second judgment, the Court delivered yet again a puzzling opinion. On the one hand,
Columbia is under no legal obligation to surrender Haya de la Torre to the Peruvian
authorities, but one the other hand, the asylum granted should be terminated immediately.

II) Razon as a sovereign state is-solely-responsible for its diplomatic decisions

While there is no obligation under international law to grant asylum to refugees, states are
still bound by the principle of non-refoulement as defined in article 33 of the 1951
Convention. This principle provides that no refugee shall be returned to any country “where
his life or freedom would be threatened on account of his race, religion, nationality,
membership of a particular social group or political opinion.” This principle is now generally
considered to be part of customary international law63. It must be noted that the principle is
not limited to those formally recognised as refugees. In other words, asylum-seekers should
not be returned to any country where they would face persecution and they benefit from such
a prohibition until they are declared not to be refugees.

Issue 3

The Court may exercise jurisdiction over Razon’s counter-claim concerning the
Amaterasu Airways aircraft.

63
E. Lauterpacht and D. Bethlehem, “The scope and content of the principle of nonrefoulement: opinion”, in E.
Feller, V. Trk and F. Nicholson (eds.), Refugee protection in international law: UNHCR’s Global Consultations
on International Protection (Cambridge: Cambridge University Press, 2003), 87-177, at 149.

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The court has jurisdiction over Razon’s counter-claim concerning the Amaterasu Airways
aircraft because firstly, the court has jurisdiction under the Convention Relating to the Status
of Refugees and secondly, the court has jurisdiction under the rules of ICJ.

A. The Court Has Jurisdiction Under the Convention Relating To The Status of
Refugees

Early in the morning of 26 June, a Amaterasu Airways aircraft crashed into a forest in Ariton,
carrying Sasuke and Ms. Sakura. Sasuke, who had been employed as a pilot for Amaterasu
Airways64 and Ms. Sakura, formerly a lab technician at National Bioresearch Laboratory of
Ariton65 who was granted asylum by Razon. 66 Sasuke and Ms. Sakura intended to fly to the
international airport at Otoga, Razon.67 At 03:12, when the aircraft was just three minutes
flying time from the outskirts of the city, Lieutenant Kakashi fired at its wing root area and
the plane crashed.68 Here, Ms. Sakura has achieved the status of refugee69 and the shoot down
of the Amaterasu Airways aircraft has not to be considered as domestic matter of Ariton
rather the interest of Razon.

When people flee their own country and seek sanctuary in another country, they apply for
asylum which includes the right to be recognized as a refugee and receive legal protection
and material assistance. An asylum seeker must demonstrate that his or her fear of
persecution in his or her home country is well-founded. Here, Ms. Sakura has expressly asked
for asylum 70 and Razon has granted her asylum 71 which means Ms. Sakura has to be
considered as a refugee of Razon.

That Article 1 of the Convention Relating to The Status of Refugees defines a refugee as a
person who is outside his/her country of nationality or habitual residence; has a well-founded
fear of persecution because of his/her race, religion, nationality, membership in a particular
social group or political opinion; and is unable or unwilling to avail himself/herself of the
protection of that country, or to return there, for fear of persecution. Article 14 of the UDHR
grants the right to seek and enjoy asylum from persecution. This right, in addition to the right

64
Para 43 of the Agreed fact sheet
65
ibid
66
Para 25 of the Agreed fact sheet
67
Para 43 of the Agreed fact sheet
68
Para 42 of the Agreed fact sheet
69
Para 44 of the Agreed fact sheet
70
Para 21 of the Agreed fact sheet
71
Para 44 of the Agreed fact sheet

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to leave one’s own country. 72 Article 14 makes it clear people cannot be granted asylum
simply to avoid prosecution for “non-political crimes73 or acts contrary to the purposes and
principles of the United Nations 74.” So, war criminals, and those guilty of a crime against the
peace or a crime against humanity, do not qualify for asylum. Here, Ms. Sakura cannot be
considered as war criminal, and guilty of a crime against the peace or a crime against
humanity. Therefore, there is no reason to exclude Ms. Sakura from the status of refugee.

Article 38 of the Convention Relating to the Status of Refugees provides that any dispute
between Parties to this Convention relating to its interpretation or application shall be
referred to the International Court of Justice at the request of any one of the parties to the
dispute. Therefore, c because this matter is not domestic matter of Ariton rather the interest of
Razon.

B. The Court Has Jurisdiction Under the Rules of ICJ.

In the famous case concerning the Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) 75 and in the
case on Oil Platforms (Islamic Republic of Iran v. United States of America) 76 the Court
found that the counter-claims, respectively submitted by Yugoslavia and the United States in
their counter-memorials, were admissible under Article 80 para. 1 of the Rules of the ICJ,
which reads as follows: A counter-claim may be presented provided that it is directly
connected with the subject matter of the claim of the other party and that it comes within the
jurisdiction of the Court. In the River Meuse case (Netherlands v. Belgium) 77 the Court
admitted the counterclaim of the Belgian Government as the claim was 'directly connected
78
with the principal claim' . In the U.S. Nationals in Morocco case (French Republic v.
United States of America)79 its counter-claim the Government of the United States requested
the Court to adjudge and declare that the facts alleged by the French Government in its claim
consisted in breaches of treaty rights of the United States and represented violations of
international law. In this case no objection to the admissibility of the counter-claim was
raised and the Court proceeded to deal with all the submissions.

72
Article 14 of the UDHR
73
Article 1(F)(b) of the Convention Relating to The Status of Refugees
74
Article 1(F)(c) of the Convention Relating to The Status of Refugees
75
Bosnia and Herzegovina v. Yugoslavia
76
Islamic Republic of Iran v. United States of America
77
(Netherlands v. Belgium
78
PCIJ Series AlB. No. 76. at 28.
79
ICJ Reports (1952). at 178.

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That the Razon’s counter claim is Ariton violated international law by shooting down the
aircraft which is directly connected to the subject matter of the claim raised by the applicant.
Therefore, the court has the court has jurisdiction over Razon’s counter-claim concerning the
Amaterasu Airways aircraft.

Issue 4

Ariton violated international law by shooting down the aircraft.

A. Shooting down of a civilian aircraft violates Convention on International Civil

Aviation (ICAO)

Where the question to determine is whether shooting down a civilian aircraft is in violation of
international law, discussion on the issue of territorial sovereignty over airspace is vague.
According to Article 3bis of the 1948 Protocol relating to an amendment to the I Convention
on International Civil Aviation, “the contracting States recognize that every State must
refrain from resorting to the use of weapons against civil aircraft in flight and that, in case of
interception, the lives of persons on board and the safety of aircraft must not be endangered.
This provision shall not be interpreted as modifying in any way the rights and obligations of
States set forth in the Charter of the United Nations 80. It is expressly stated that States must
not resort to the use of weapons against a civil aircraft, in flight or even in case of
interception. It is recognized that every State, in the exercise of its sovereignty, is entitled to
require the landing at some designated airport of a civil aircraft flying above its territory
without authority, it may also give such aircraft any other instructions to put an end to such
violations, and for this purpose, the contracting States may resort to any appropriate means
consistent with relevant rules of international law, including the relevant provisions of this
Convention, specifically paragraph (a) of this Article 81. This provision clearly excludes the
use of any weapon on civilian aircraft and is required to resort to any other means consistent
with general international law in order to avoid international legal liability.

The incident report, authored by the Commanding Officer of the Konaha Area Air Force
confirms that a 12-person civilian aircraft owned by Amaterasu Airways took off without
authorization at 02:57 local time 82. There remain no suspicions as to the knowledge of the

80
Article 3bis (a) of the 1948 Protocol relating to an amendment to the I Convention on International Civil
Aviation
81
Art 3bis (b)
82
Para 42 of the Fact Sheet

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Commanding Officer regarding the aircraft being a civilian one from the very start of this
operation. If there had been confusion that the aircraft was rather a military aircraft or State
aircraft, only then this incident could have been excluded from this article and accordingly
there would be no violation in context of this Article.

The contracting states undertake, when issuing regulations for their state aircraft, that they
will have due regard for the safety of navigation of civil aircraft 83. Ariton has acted clearly in
violation of this Convention which every contracting state must abide by as after the
destruction of Korean Air Lines 007 on the 31st August of 1983, all parties concerned agreed
that the Chicago Convention was valid and its procedures coherent 84.

there is no circumstance in which any nation can be justified in shooting down an unarmed
civilian aircraft serving no military purpose. The fact that the aircraft may have strayed into
unauthorized airspace provides no justification whatsoever for an attack on the aircraft 85

There remains no uncertainty that Ariton has violated the Convention on International Civil
Aviation by shooting down the ‘civilian aircraft’ as it is strictly prohibited.

B. No legal grounds shall justify Ariton’s violence in disguise of self-defense

I. Violation of UN Charter

Article 51 of the UN Charter states that “nothing in the present Charter shall impair the
inherent right of individual or collective self-defense if an armed attack occurs against a
Member of the United Nations, until the Security Council has taken measures necessary to
maintain international peace and security” 86. With this article it is established that states shall
have the inherent right to take measures and actions while for protecting their interest, by way
of self-defense, only when they are faced against an armed attack.

In several decisions, the ICJ confirmed the principle according to which self-defense is
subjected to the dual conditions of necessity and proportionality 87. The Charter of the United

83
Article 3d of the Chicago Convention
84
See the second ICAO report of KAL 007 shoot down, online, at ICAO
http://www.icao.int/cgi/goto_m.pl?icao/en/trivial/kal_flight_007.htm
85
Australian Delegate on special session of the United Nations Security Council concerning the tragedy
convened on September 2, 1983 (Chan V Korean Air Lines Ltd)
86
Chapter VII Article 51 of the UN Charter
87
ICJ decision, 27 June 1986, sec. 194; and ICJ decision, 6 November 2003, Oil Platforms (Islamic Republic of
Iran v. United States of America), Reports 2003, General Cause Book no. 90.

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Nations does not contain any specific rule whereby self-defense would warrant only measures
which are proportional to the armed attack and necessary to respond to it, a rule well
established in customary international law 88 . In the case of armed activities in Congo the
Court indicated that “since the preconditions for the exercise of self-defense do not exist in
the circumstances of the present case, the Court has no need to enquire whether such an
entitlement to self-defense was in fact exercised in circumstances of necessity and in a
manner that was proportionate89. The international Court of Justice explained the meaning of
the “armed attack” as “the most-grave form of the use of force 90. The threatened state can
91
take military action as long as the threatened attack is imminent . The criterion of
imminence correlates with the Caroline formula (1842), according to which the self-defense
can only be exercised in the situations where the need to respond is instant, leaving no
moment for deliberation92. The other states condemned Israeli action generally because the
threat was not imminent 93.

If we follow the incident report authored by the Commanding Officer exclusively stating “I
did not know, and still do not know, who was on board”94 is evident enough that there was no
actual basis of being threatened or being attacked subject to an armed conflict by another
state. In the case Islamic Republic of Iran v. United States of America (2003) the
International Court of Justice pointed out that the burden of proof of the fact of showing the
existence of such attack rested on the State which justified its own use of force as self-
defense 95 . The apprehension of an armed attack must raise to certain “scale and effect”,
therefore not all attacks can be qualified as armed attacks 96 . Identical reports from

88
Nicaragua v. United States, judgement of International Court of Justice, 1986, para. 176
89
Democratic Republic of the Congo v. Uganda, judgement of International Court of Justice
90
Nicaragua v. United States, judgement of International Court of Justice, 1986, para. 191,

Report of the Secretary-General’s High-Level Panel on Threats, Challenges and Change. A More Secure
91

World: Our Shared Responsibility, A/59/565/, 2 December 2004, p. 62

92
The United States Secretary of State Daniel Webster dated 24 Apr. 1841, in Caroline Case, 29 British and
Foreign State Papers (1841) 1137–1138,
93
The criterion of imminence was also discussed in the Security Council after the Israeli attack on the Iraqi
Osiraq nuclear reactor in 1981. 17. United Nations Security Council Document S/PV.2283 of 15 June 1981,
94
Para 42 of the Fact Sheet
95
Case Concerning Oil Platforms, 2003, 42 ILM 1334, 1356 (2003) (Islamic Republic of Iran v. United States
of America), Judgement of 6 November 2003, para. 64 and 72,

96
The International Court of Justice in the case Nicaragua v. United States (1986)

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INTERPOL indicating a terror attack by” FOJ” 97 and assuming a civilian aircraft of own
nationality to be rogue, without having actual proof and basis to conclude as such, and taking
forceful measure in such circumstance is rather a pre-emptive measure adopted by Ariton. It
is necessary to evaluate that international law does not recognize pre-emptive self-defense,
which might indeed encourage states to acquire an arsenal sufficient to ensure an independent
defense and prompt an arms race98.

II. Violation of general International Law

To date, no rule of international law would likely validate the thesis of pre-emptive self-
defense; an armed attack remains a precondition99. The state must not engage in reprisals
disproportionate to the unlawful act to which it responds100. The prohibition of armed force
against civil aircraft follows an international norm. Until 1928 the use of force was a natural
component of the state’s sovereignty. That year, the Kellogg-Briand Pact became the first
convention to establish the non-use of force as a principle regulating international relations, a
rule taken up by the Charter of the United Nations (UN) and upheld by the International
Court of Justice (ICJ)101. Most of the legal theory thus considers the non-use of weapons a
peremptory norm of international law, also called jus cogens 102. The state must not engage in
reprisals disproportionate to the unlawful act to which it responds 103.

All the laws and the decisions adopted by Courts suggest that the action of Ariton in shooting
down the civilian aircraft was not only unnecessary, rather it was an act of international

97
Para 39 of the Fact Sheet
98
ICJ, Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, 9 July 2004, Reports 2004, General Cause Book no. 131, sec. 140
99
Conceivably, an evolution of international law on this point will occur. United Nations, Report of the High-
Level Panel on Threats, Challenges and Change, 1 December 2004, A/59/565.
100
Special German-Portuguese Arbitral TribunaL verdict, Naulilaa case, 31 July 1928, RSA, vol. 2, sec. 43.
101
Art. 2, sec. 4. “The Charter and the customary international law flow from a common fundamental principle
outlawing the use of force in international relations.” ICJ decision, 27 June 1986, Nicaragua v. United States,
case concerning military and paramilitary activities in and against Nicaragua, Reports 1986, General Cause
Book no. 70
102
In its work on the codification of the Law of Treaties, the International Law Commission stated that “the law
of the Charter concerning the prohibition of the use of force in itself constitutes a conspicuous example of a rule
in international law having the character of jus cogens.” Par. 1 of the International Law Commission’s
Commentaries on Art. 50 of its draft “Articles on the Law of Treaties,” International Law Commission
Yearbook, 1966-II, 270.
103
Special German-Portuguese Arbitral TribunaL verdict, Naulilaa case, 31 July 1928, RSA, vol. 2, sec. 43.

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violence, detrimental to civilians' life. There remains no further confusion as to the

applicability of self-defense to cover up such heinous act done by Ariton in order to
safeguard their interest after resorting to violence regarding a matter of international concern,
where one of the victims of such tragedy was subject to approval for asylum under the rules
and regulations of Razon

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