1994 Part i Philip c Jessup

Citation: 1994 - Part I Philip C. Jessup Int'l L. Moot Ct. Comp. 1994

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The Philip C. Jessup International LawMoot Court Competition

1994 PART I

FREEDONIA

V.

BALBOA

Case concerningThe Granting of Refugee Status

BEST MEMORIAL - INTERNATIONAL SEMIFINALS(Respondent)

Best Memorial - International Semifinals (3rd Place - Tie)(Mona E. Evans Award)

Hamline UniversityU.S.A.

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304R

INTERNATIONAL COURT OF JUSTICE

FOR THE UNITED NATIONS

The State of FreedoniaApplicant

. Against -

The State of BalboaRespondent

MEMORIAL FOR THE RESPONDENT

Of Counsel:Agents for Balboa

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TABLE OF CONTENTSPAGE:

INDEX OF AUTHORITIES . ............................ iii

STATEMENT OF JURISDICTION ..................................... vi

STATEMENT OF FACTS ...................... vii

QUESTIONS PRESENTED .......... .................. X

SUMMARY OF THE PLEADINGS .................................... Xi

ARGUMENT

I. The International Court of Justice Does Not Have Jurisdictionto hear this case because the matter of the Pankhursts and theLaborians is within the domestic jurisdiction ofBalboa .................................................. 1

A. Under reciprocity, Balboa may invoke Freedonia's narrowerdeclaration, and this matter should therefore bedismissed .................... * ....................... 1

B. The Self-judging reservation is a valid an necessarylimitation on a state's acceptance of the compulsoryjurisdiction of the I.C.J ............................ 3

C. The Court need not make a decision on jurisdiction underArticle 36 (6) because the declarations deal directlywith the issue of jurisdiction ....................... 6

D. Freedonia may not espouse the claim of the Pankhursts andthe Laborians because they do not have a real, effectivelink with that country ................................. 7

II. Balboa is under no obligation to enure that the Pankhursts and

the Laborians possess an effective nationality ............ 8

A. Neither the Pankhursts nor the Laborians are stateless.8

B. Even is they are stateless, there is no international lawapplicable to Balboa obligating that state to ensure thatthey possess an effective nationality ................ 9

III. Balboa is under no obligation by treaty or customaryinternational law to extend refugee status to the Pankhurstsor Laborians ............. ..... ..... ................... 11

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A. Balboa has exclusive jurisdiction over the refugees as afunction of its inherent sovereignty ................ 11

B. Balboa is not obligated by any treaty to extend refugeestatus to the Pankhursts or Laborians ............... 13

C. Balboa is not obligated to extend refugee status to thePankhursts or Laborians because they are not refugeesunder international law .............................. 14

1. Balboa has the Right to make any determinationwhether or not to grant asylum under customaryinternational law .............................. 15

2. Exercising its right of determination, Balboa hasconcluded that the Pankhursts and the Laborians arenot refugees under customary international law.. 16

IV. Balboa has no obligations under principles of non-refoulementbecause Balboa has not consented to be bound to non-refoulement by treaty, nor is non-refoulement customaryinternational law ......................................... 21

A. Balboa has not consented to be obligated by treaty to theprinciples of non-refoulement ........................ 21

B. Non-refoulement does not create any obligation uponBalboa because the international community does notaccept this principle as customary international law. 22

C. Even if non-refoulement is considered customaryinternational law, Balboa's actions are legal sinceneither the Pankhursts nor the Laborians are refugees asrequired by the principles of non-refoulement ........ 22

V. Balboa has fulfilled its obligation under the convention onthe rights of the child because Balboa, under its rights ofsovereignty has determined that it is in the best interests ofthe children to be placed in Balboan foster homes ......... 23

I. CONCLUSION ............................................. 25

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INDEX OF AUTHORITIES

JUDICIAL AND ARBITRAL DECISIONS

Aerial Incident of 27 July 1955 (U.S. v. Bulg.), 1957 I.C.J.Pleadings 265 ................................................ 5

Certain Norwegian Loans (Fr. v. Nor.), 1957 I.C.J. 9 ......... 1, 3

Fisheries Case (U.K. v. Nor.), 1951 I.C.J. 116 ............... 15

Interhande (Switz. v. U.S.), 1959 I.C.J. 6 .................... 2

Military and Paramilitary Activities in and Against Nicaragua(Nicar. v. U.S.), 1984 I.C.J. 392....... . .................. 4

Ministry of Home Affairs v. Kemali, 40 Int. L.R. 191 .......... 9

Nottebohm (Liech. v. Guat.) 1953 I.C.J. 111....... ........... 8

Right of Passage Case (Portugal v. India), I.C.J. Reports 1960. 13

The S.S. "Lotus" (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10).. o... .. . .. .. . .. .. . .. .. . ........ ....... o....... 13, 21

ARTICLES

H. Briggs, Reservations on the Acceptance of the Jurisdiction ofthe I.C.J., 93 Res de Cours 267 (1958) ....................... 1

T. Cox, Criterion of Refugee Status, 10 Brooklyn J. Int'l Law 333(1984) ....................................................... 19

A. D'Amato, Icy Day at the I.C.J., 79 Am. J.I.L. 379 (1985).. 3

L. Gross, Bulgaria Invokes the Connally Amendment, 56 Am. J.I.L.357 (1962) ................................................ 3, 5, 6

K. Hailbronner, Nonrefoulement and "Humanitarian" Refugees:Customary International Law or Wishful Legal Thinking?, in-The NewAsylum Seekers: Refugee Law in the 19801s: the Ninth SokolColloquium on International Law (1988) ..................... 21, 22

S. Martin, Non-Refoulement of Refugees: United States Compliancewith International Obligations, 23 Harv. Int'l L.J. 357 (1983). 22

R. Newmark, Non Refoulement Run Afoul: The Questionable Legalityof Extraterritorial Repatriation Programs, 71 Wash. Univ. LawQuarterly 833 (1993) ......... * .... .. . ....... .. ............ 22

J.N. Saxena, Problems of Refugees in the Developing Countries and

the Need for International Burden Sharing, in International Law in

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Transition, editors R.S. Pathak and R.P. Dhokalia 95 (1992)... 16

G. Scott and C. Carr, The I.C.J. and Compulsory Jurisdiction, 81Am. J.I.L. 57 (1987) .......................................... 3

L. Sohn, A Short History of the United Nations Documents on HumanRights, in Commission to Study the Organization of Peace, 18thReport, The United Nations and Human Rights 39 (1968) ......... 16

E. Weiss, Reciprocity and the Optional Clause, in The InternationalCourt of Justice at a Crossroads, 89 (1987) ................... 10

BOOKS

J.L. Brierly, The Law of Nations; An Introduction to theInternational Law of Peace (6th ed. 1963) ..................... 15

I. Brownlie, International Law (3d ed. 1979) .................. 9

J. Crawford, The Creation of States in International. Law (1979) .12

I. Detter De Lupis, International law and the Independent State(2nd ed. 1987) ................................................ 13

R. Donner, The Regulation of Nationality in International Law(1983) ............... ............ . . .......... ... ......... 9

J. Ecklund, Non-Appearence Before the I.C.J. (1984) ........... 6

G. Goodwin-Gill, The Refugee in International Law (1983) ... 16, 23

L. Henkin, R. Pugh. 0. Schachter & H. Smit, International Law:Cases and Materials (1987) .................................... 15

L. Horborn, The IRO, its History and Work 1946-1952 (1956) .... 15

I. Hussain, Separate and Dissenting Opinions of the I.C.J. (1-985).4

H. Mutharika, The-RegMlations of Statelessness in International Law(1989) ........................................................ 12

M. Villiger, Customary International Law and Treaties (1985).. 15

P. Weis, Nationality and Statelessness in International Law (1979).

................................. ....................... 9, 11

STATUTES

I.C.J. Statute Art. 34 (1946) ................................ 8

I.CoJ. Statute Art. 36 (2) (1946) ...o........................ 1

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I.C.J. Statute Art. 36 (6) 1946) ............................. 9

I.C.J. Statute Art. 38 (1946) ................................... 6

TREATIES AND CONVENTIONS

Convention Relating to the Status of Stateless Persons, signed NewYork, Sept. 28, 1954, 360 U.N.T.S. 130 (1960) ................ 9

European Agreement on Transfer of Responsibility for Refugees(1980) ............. 0... ...... ........... 0..................... 18

Organization of African Unity: 1969 Convention on Refugee Problemsin Africa, done at Addis Ababa on September 10, 1969, U.N.T.S. No.14,691 ......... .. .......................................... 18

Vienna Convention on the Law of Treaties, done at Vienna on 23 May1969, entered into force on 27 Jan. 1980, Art. 2, para. l(a), U.N.Doc. A/CONF. 39/27, 63 Am. J. Int'l L. 875 (1969) ......... 10, 14

United nations Convention on the Rights of The Child, done Nov. 20,1989, entered into force, Sept. 2, 1990, G.A. Res. 44/25.o..... ..... o .... ....................... .......... 23, 24, 25

United Nations Convention Relating to the Status of Refugees, July28, 1951, 189 U.N.T.S. 137 ...................... 14, 18, 23

United Nations Protocol Relating to the Status of Refugees, January31, 1967, 606 UoN.T.S. 267, 6 I.L.M. (1967) ................ 14, 28

UNITED NATIONS DOCUMENTS

United Nations Charter, June 26, 1945, 59 Stat. 1031, Art. 2,paragraph 1 ........ ........................... 12

United Nations Declaration on Territorial Asylum, December 14,.1967, G.A. Res. 2312 (XXII), GAOR Supp. (No. 16) 81, U.N. Doc.A/6716 (1968) ...................... 16

GOVERNMENT DOCUMENTSA. D. Sofaer, Statement by the Legal Advisor to the Senate ForeignRelations Committee, given Dec. 4, 1985, in Carter & Trimble,International Law, 298 ...... ............................... 4

RESTATEMENTSRestatement (third) of the Law of Foreign Relations § 102 cmt. bo(1986) , ... _.......... .. .. . ................... ......... . 5

Restatement (third) of the Law of Foreign Relations § 903 cmt. b.

(1986)............ ,............................. 2

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Statement of Jurisdiction

Both parties to this case have made declarations, with

limitations, to the compulsory jurisdiction of the Court under

Article 36 (2) of the I.C.J. Statute. There is a dispute, however,

over whether the court possesses jurisdiction due to the existence

of a self-judging reservation in Freedonia's declaration.

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STATEMENT OF FACTS

In April of 1993, Hillary Pankhurst, a national and harsh

critic of the domestic policies of the state of Draconia,

received an invitation to speak at a convention in the

neighboring state of Balboa. Pursuant to a standing law in

Draconia, Hillary applied for and received a temporary exit visa,

valid for only two weeks and for the specific purpose of

attending the conference. r. 1. Hillary remained in Balboa for

two weeks and presented her speech. After receiving a news from

home that her apartment in Draconia had been searched by

government officials, however, Hillary sought to remain in Balboa

beyond the two week parameter of her exit visa. r. 2. She

applied to the Balboan Government for recognition as a refugee.

Because Hillary did not qualify as a refugee under law or custom,

she was denied protection from the Balboan government. r. 2.

Despite her inability to qualify as a refugee, Hillary

continued to stay illegally in Balboa beyond the period provided

in her expired exit visa. Balboa was forced to take steps to

ensure that the further violations of her visa did not occur and

that she was repatriated to Draconia. r. 2. She was detained in

a hotel, where she was provided room and board pending her return

to Draconia. r. 3,4.

During this time, Hillary's husband, Rousseau, and daughter,

Emily, both residents of Draconia, violated their native

country's law by leaving home detainment. They illegally entered

Balboa from Draconia seeking the same refugee protection that

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Hillary had previously been denied, and, for the same reasons,

were denied protection from the Balboan government. Rousseau was

housed in a similar fashion, yet separate from Hillary, pending

his return to Draconia. Balboa determined that it was in Emily's

best interests to be placed in a Balboan foster home. r. 3,4.

Shortly after these events had occurred, Freedonia, a third

state with a government possessing only three years experience,

intervened on behalf of the Pankhursts and a group from Laboria,

a war-torn state neighboring Balboa. Consistent with its recent

tradition of international activism, Freedonia sought the

immediate transport of these individuals to Freedonia. r.4.

Balboa declined this offer, choosing rather to repatriate the

individuals. In response, Freedonia sued Balboa in the

International Court of Justice, seeking the forced transfer of

the Draconian and Laborian nationals to Freedonia.

Both states had previously accepted the compulsory

jurisdiction of the Court under full reciprocity of reservations

pursuant to Article 36 (2). Freedonia's acceptance was far

narrower than Balboa's, however, containing a self-judging

reservation that excluded from their acceptance, "... those

matters which are essentially within (Freedonia's) national

jurisdiction, as determined by the government of Freedonia." r.5.

Balboa here asks the court for a declaration:

1) that the Court possess no jurisdiction to hear the dispute

because the matter of the Pankhursts and the Laborians is within

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the domestic jurisdiction of Balboa; and

2) even if the Court has jurisdiction, Balboa has accorded

treatment to the Pankhursts and the Laborians which complies with

that demanded by international law.

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Questions Presented

1. Whether the International Court of Justice has jurisdiction tohear the instant case?

2. Whether the Pankhursts and the Laborians have standing to bring

this matter before the court?

3. Whether the Pankhursts and the Laborians are stateless?

4. Whether, if they are stateless, does international law obligateBalboa to ensure they possess an effective nationality?

5. Whether Balboa's inherent sovereignty has been limited eitherby its consent or by customary international law thus obligatingBalboa to turn over the refugees to Freedonia?

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Statement of Pleadings

The self-judging reservation is a valid and necessary

component of a state's acceptance of the compulsory jurisdiction

of the International Court of Justice. International law

necessitates that states retain the ability to regulate their

accession to the jurisdiction to the Court under Article 36 (2)

of the ICJ Statute. States, including Balboa have had this power

since the Court's inception.

Under the universally recognized principle of reciprocity, a

defendant state may invoke the narrower reservations to

jurisdiction found in the declaration of an applicant state.

Therefore, Balboa has the authority to invoke the self-judging

reservation contained within Freedonia's acceptance of the

compulsory jurisdiction of the court.

This Honorable Court should not make a decision based on

Jurisdiction under Article 36 (6). Since the parties have

clearly accepted the compulsory jurisdiction of the Court, the

Court's interpretive power under Article 36 (6) has not been

invoked.

Further, this Honorable Court should deny Freedonia's claims

against Balboa due to Freedonia's lack of proper connection with

either group housed in the Balboan hotel. States lacking

effective links with particular individuals may not advocate any

claims of those individuals. Thus, the Pankhursts and the

Laborians do not have standing before the ICJ, since Freedonia

lacks the necessary link required for Freedonia to espouse their

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claim.

The Pankhursts and the Laborians are not stateless under

international law, because they have continuously remained

nationals of Draconia and Laboria, respectively. Furthermore,

Balboa is not a signatory to any treaty which defines state

obligations involving stateless persons and customary

international law does not exist on this issue. Thus, even if

the Pankhursts and the Laborians are determined stateless, Balboa

is under no obligation to ensure that they obtain an effective

nationality.

In addition, Freedonia's claim should be denied since no

treaty or customary international law exists which obligates

Balboa to extend refugee status to either the Pankhursts or the

Laborians. Balboa, under its inherent sovereignty and customary

international law makes all determinations of refugee status

involving people within its jurisdiction. Having determined that

the Pankhursts and the Laborians do not qualify for refugee

status under customary international law, Balboa is entitled to

return both groups to their respective countries of origin.

Furthermore, this Honorable Court should deny any claim of

non-refoulement because principles of non-refoulement are not

applicable to either the Pankhursts' or the Laborians' situation.

Balboa has not expressly bound itself to any treaty involving the

mandatory application of non-refoulement. Furtheimore, because

states have not treated the principles non-refoulement as

customary international law, Balboa is not obligated to follow

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its principles.

Non-refoulement as it has related to state action has only

applied to refugees as recognized by customary international law.

Consequently, even if it were determined that non-refoulement was

customary international law, neither the Pankhursts nor the

Laborians would fall under the scope of its application because

of their lack of refugee standing. Thus, Balboa's inherent

sovereignty is not restricted and foreign entities may not

restrict Balboa's repatriation of the Pankhursts and the

Laborians.

Finally, this Honorable Court should deny any claim that

Balboa is not fulfilling its obligation under the Convention on

the Rights of the Child. Parties to this Convention must make

determinations as to the best interests of the children within

their jurisdiction. The best interests of the children are the

foremost concern and obligation of parties to the Convention.

Balboa under authority of the Convention, has determined that it

is in the children's best interests to be placed in foster homes,

away from the potentially detrimental effects the hotel. Thus,

Balboa has fulfilled its obligations mandated by the Convention.

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ARGUMENT

Io THE INTERNATIONAL COURT OF JUSTICE DOES NOT HAVEJURISDICTION TO HEAR THIS CASE BECAUSE THE MATTER OF THEPANKHURSTS AND THE LABORIANS IS WITHIN THE DOMESTICJURISDICTION OF BALBOA.

A. UNDER RECIPROCITY, BALBOA MAY INVOKE FREEDONIA'SNARROWER DECLARATION. AND THIS MATTER SHOULD THEREFOREBE DISMISSED.

Balboa may invoke the self-judging reservation of Freedonia

in determining the scope of its acceptance of the compulsory

jurisdiction of the ICJ based on the principle of reciprocity.

Under a theory of reciprocity states may only be brought before

the court by other states to the extent those states have

accepted the same jurisdictional commitment.' The International

Court of Justice was conceived as an institution before which all

states would come on an equal footing.2 To ensure recognition

of the principle of judicial equality, the statute of the Court

includes an "optional clause" by which states may accept the

jurisdiction of the court based on reciprocity. The statute of

the International Court of Justice specifically provides that

states "...may at any time recognize as compulsory ipso facto and

without special agreement, in relation to any other state

accepting the same obligation, the jurisdiction of the court in

all legal disputes... ''3 Defendant states may therefore invoke

1 Certain Norwegian Loans (Fr. v. Nor.), 1957 I.C.J. 9; H. Briggs,Reservations on the Acceptance of the Jurisdiction of the Interna-tional Court of Justice, 93 Res de Cours 267 (1958).

2 Briggs, at 267.

3 ICJ Statute Art. 36 (2) (1946) (emphasis added).

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both the narrower reservation of an applicant state's

declaration, or invoke an exclusion not in its own declaration

but in the declaration of an applicant state.4

The seminal case in ICJ dealings with the issue of

reciprocity is Certain NorweQian Loans.5 In that case, Norway

successfully invoked a reservation in France's declaration that

excluded from compulsory jurisdiction of the ICJ disputes that

were within the domestic jurisdiction of France as determined by

France. The court found that judicial equality would not be

served if France were obligated only to that limited extent,

while Norway remained subject to the much broader parameters of

its declaration.6 Employing the principle of reciprocity, the

court allowed Norway to invoke the narrower provisions of

France's declaration.

The instant case is directly analogous to the Norwegian

Loans case. While both parties have accepted as compulsory the

jurisdiction of the I.C.J. under 36 (2), Freedonia's declaration

excepts "those (disputes) which relate to matters which are

essentially within (Freedonia's) national jurisdiction, as

determined by the government of Freedonia", while Respondent

Balboa's declaration does not contain such a clause.7 Just as

4 Restatement (Third) of the Law of Foreign Relations § 903 cmt. b.

(1986); Interhandel (Switz. v. U. S.), 1959 I.C.J. 6.

' 1957 I.C.J. 9.

6 id., at 10.

7r. 5.


Norway was allowed to invoke this self-judging reservation in

France's declaration, so must Balboa be permitted to invoke this

narrower reservation of the Freedonia. Because the government of

Balboa has determined that the matter of the Pankhursts and the

Laborians is one within its national jurisdiction, therefore, the

I.C.J. does not have jurisdiction to hear this case under article

36 (2) of the statute, and the case should be dismissed.

B. THE SELF-JUDGING RESERVATION IS A VALID AND NECESSARYLIMITATION ON A STATE'S ACCEPTANCE OF THE ICJ'SJURISDICTION.

The International Court of Justice is, by design, a court of

limited jurisdiction.8 The court's power to make judgments and

settle disputes does not arise out of any sovereign body, as is

the case with domestic courts, Rather, the power of the ICJ

emerges from the'consent of the states who, via their unilateral

declarations, agree to be brought before the court and to be

bound by its decisions. As such, the nature of a state's

obligation to adhere to the Court's decisions is generally lik-

ened more to a contract rather than a constitution. Like a

contract, states determine at the point of acceptance the terms

by which they bargain to be accountable to the court.

Critics such as Hersch Lauterpact argue that self-judging

reservations, of which the United State's so called "Connally

Amendment" is the archetype, impair the Court's ability to exer-

8 1957 ICJ Rep. 9: A. D'Amato, Icy Day at the ICJ, 79 Am. J.I.L.379 (1985); G. Scott and C. Carr, The ICJ and Compulsory Juris-diction, 81 Am. J.I.L. 57 (1987); L. Gross, Bulgaria Invokes theConnally Amendment, 56 Am. J.I.L. 357 (1962).

3


cise real control over the parties by giving the declaring na-

tions too easy an "out".9 A fundamental tenet of any contractual

or quasi-contractual arrangement, however, is that each party to

the agreement maintains control over the terms by which they

enter into the contract. The entire basis of this contract would

be invalidated if states lacked the ability to determine on which

grounds they commit to the jurisdiction of the court.

At no time in the 70 year history of institutionalized

international dispute settlement has a court ever ruled that a

state's self-judging reservation was not valid. 10 When the

Court has made inroads on national sovereignty by questioning the

validity of a state's reservation limiting its acceptance of the

court's compulsory jurisdiction, i.e. Military and Paramilitary

Activities in and Against Nicaragua,11 states have revoked their

declarations.12 The ICJ's ability to keep states as compulsory

parties to the Statute is essential to the ICJ's continued

ability to function as an effective international dispute

resolution body. Any further exodus from the compulsory

jurisdiction of the court will surely serve to weaken the court's

9 I. Hussain, Separate and Dissenting Opinions of the International

Court of Justice, 176 (1985).

10 E. Weiss, Reciprocity and the Optional Clause, in The

International Court of Justice at a Crossroads, 89 (1987).

11 Nicaragua v. United States, 1984 I.C.J. 392.

12 Abraham D. Sofaer, Statement by the Legal Advisor to the SenateForeign Relations Committee (Dec. 4, 1985), in B. Carter & P.Trimble, International Law, 298 (1991). (withdrawing the UnitedStates' acceptance of the compulsory jurisdiction of the ICJ.).

4


effectiveness. Therefore, as a means of allowing states to

determine on their own the extent of jurisdiction they will ac-

cept, the self-judging, Connally-type reservation serves to up-

hold the basic fundamental principles on which the court is based

by maintaining the subtle balance between effective jurisdiction

and national sovereignty.

Moreover, because states that are parties before the ICJ

recognize the validity of such reservations, the self-judging

reservation must be considered valid as a principle of customary

international law.13 Customary international law arises when

states in the international community give general and consistent

usage to a principle of law out of a sense of legal obligation,

or "use and opinio juris".14 States include self-judging

reservations in their acceptance of the jurisdiction of the

court, despite scholarly critiscm to the contrary. This tacit

acquiescence by states to the validity of the self-judging

reservation was illustrated in the circumstances surrounding the

Aerial Incident of 27 July 1955 (United States v. BulQaria).15

The United States began proceedings against Bulgaria before the

ICJ concerning an incident involving the shooting down of an

Israeli aircraft. When Bulgaria made clear its intention to

invoke the self-judging Connally Amendment to defeat jurisdic-

13 Aerial Incident of 27 July 1955 (U. S. v. Bulg.), 1957 I.C.J.

Pleadings 265.; 56 Am. J.I.L. at 366; 1957.

14 Restatement (Third) of the Law of Foreign Relations §102 cmt. b.(1986).

15 1957 ICJ Pleading 265.


tion, however, the United States immediately withdrew its claim

from the ICJ. Scholars agree that the reason for the withdrawl

of the claim was the United States' realization that Bulgaria's

invoking of the Connally Amendment would withstand the muster of

an ICJ review, and that jurisdiction would be denied because of

it. 16 Such reservations, therefore, have continued to receive

general and consistent usage by the ICJ and international

community as a whole, and their validity remains a principle of

customary international law.

C. THE COURT NEED NOT MAKE A DECISION ON JURISDICTIONUNDER ARTICLE 36 (6) BECAUSE THE DECLARATIONS DEALDIRECTLY WITH THE ISSUE OF JURISDICTION.

In cases involving a self-judging reservation, the courts

have construed the vague and ambiguous language of paragraph (6)

clause very narrowly.17 Article 36 (6) of the ICJ statute

provides that, "..in the event of a dispute as to whether the

court has jurisdiction, the matter shall be settled by the

decision of the court." In the Nottebohm Case, however, the

court established the general rule that article 36 (6) will only

be employed in the absence of any agreement to the contrary. 18

The rationale behind this principle is that, in matters of

compulsory jurisdiction, the will of the parties has already been

16 56 Am. J.I.L. at 366; J. Ecklund, Non-Appearance before the

I.C.J., 156 (1984).

17 56 Am J.I.L. 357 (1962).

1 Liech. v. Guat., 1953 I.C.J. Rep. 111, 119.

6


manifested by agreement in their declarations accepting the

jurisdiction of the court.19 In other words, the power of the

court to decide its own jurisdiction is generally derogated by

the will of the parties in accepting the compulsory jurisdiction

of the court. This power should not be employed if an agreement

providing for the extra judicial determination of jurisdiction

exists between the parties.

In the instant case, both Freedonia and Balboa have made

very clear and explicit declarations to the court. These

nations, through their declarations, have clearly and

unequivocally manifested the degree and extent of their intent to

be bound by the decisions of the court. For the court to exer-

cise further interpretive power under article 36 (6) in the face

of the clear and unmistakable language of these declarations

would be an unnecessary and unsubstantiated use of its power

under the statute and established case law. Article 36 (6),

therefore, is not applicable in the instant case, and the

declarations of the parties must govern the issue of

jurisdiction.

D. FREEDONIA MAY NOT ESPOUSE THE CLAIMS OF THE PANKHURSTSAND THE LABORIANS BECAUSE THEY DO NOT HAVE A REAL,EFFECTIVE LINK WITH THAT COUNTRY.

Only states, and not individuals, have standing before the

International Court of Justice.20 A recognized state must

19 id., at 120.

20 I.C.J. Statute Art. 34 (1946).


espouse an individual's claim in order for the claim to be heard

by the Court. The I.C.J. ruled in the Nottebohm case that the

application of a state to espouse the claim of an individual is

only admissible if there exists a real and effective link between

the state and the individual.21 The primary criteria for an

effective link is that the individual is more closely connected

with the interests of the state attempting to espouse its claim

than any other state.22 The primary factor in determining close

connection is the habitual residence of the individual. In the

instant case, the individuals in question have never lived in

Freedonia. Furthermore, they have no real ties with Freedonia,

either economic, cultural, political or social. Absent such

links, Freedonia may not espouse the claims of the individuals

before the ICJ. The Pankhursts and the Laborians are therefore

without standing before the I.C.J., and their claim must be

dismissed.

II. BALBOA IS UNDER NO OBLIGATION TO ENSURE THAT THE PANKHURSTSAND THE LABORIANS POSSESS EFFECTIVE NATIONALITY.

A. NEITHER THE PANKHURSTS NOR THE LABORIANS ARE STATELESS.

Neither the Pankhursts nor the Laborians are stateless. A

"stateless person" is defined as a person who is not considered

21 1955 ICJ 26.

22 id., at 29.


as a national by any state.3 A person will generally only be

found to be stateless if they have no state from which they are

conferred a nationality.24 Because courts are very reluctant to

find a person stateless, a merely ineffective link with a country

conferring nationality will not serve to render that person

stateless.25 The Pankhursts are, and have always been, Draconian

nationals. The Laborians, likewise, remain nationals of Laboria.

These links have never been severed. Thus, because they still

are nationals of a states that can provide them with some

protection in the international community, these individuals are

not considered stateless under international law.

B. EVEN IF THEY ARE STATELESS, THERE EXISTS NO APPLICABLEINTERNATIONAL LAW OBLIGATING BALBOA TO AVOID THEIRSTATELESSNESS.

Even if these individuals are stateless, Balboa is not under

any duty to ensure that they possess an effective nationality.26

International law is primarily created by treaty or by the

existence of customary international law.27 The Vienna

Convention on the Law of Treaties, of which both parties here are

23 Convention Relating to the Status of Stateless Persons, signed

New York, Sept. 28, 1954, 360 U.N.T.S. 130 (1960): Mutharika, TheRegulation of Statelessness Under International Law (1989).

24 Brownlie, International Law, 554 (3d ed. 1979).

25 see Ministry of Home Affairs v. Kemali, 40 Int. L.R. 191, 195.

26 Weis, Nationality and Statelessness in International Law, 198

(1979); Donner, The Regulation of Nationality in International Law94 (1983); Weis, at 202.

27 ICJ statue, art. 38 (1946).


signatories, provides as a fundamental principle that a treaty is

binding only between states that are parties to it, or pacta

teterhis nec nocent nec prosunt. 28 In the instant case, Balboa

is not a party to any international agreements that obligate that

state to take measures, outside its own domestic law, to ensure

that another state's nationals are afforded protection of inter-

national law.29 While there do exist two seminal conventions,

the 1954 Convention relating to the Status of Stateless persons

and the 1961 Convention on the Reduction of Statelessness,

addressing the issue of stateless persons, neither Balboa nor

Freedonia are signatories to those agreements. 30 Since Balboa

is not a party to these, or any other treaty on the issue of

statelessness, it is' not bound by treaty law to any of the

provisions contained within. As such, there is no binding treaty

creating an obligation on Balboa to deal with the effectiveness

of the Pankhursts' and the Laborian's nationalities.

Furthermore, the principles articulated in these treaties

have not been given the sort of usage and opinio juris on which a

binding rule of customary international law obligating states to

prevent a person from becoming stateless is based.31 These

28 Vienna Convention on the Law of Treaties, done at Vienna, May 23,1969, ehtered into force on Jan.., 27, 1980, Art. 2, para 1 (a),U.N. Doc A/CONF. 39/27, 63 Am. J.I.L. 875 (1969).

29 77 Am.J.I.L. 804, 839 (1983).

30 360 U.N.T.S. 130 (1960); 309 U.N.T.S. 59 (1961).

31 H. Mutharika, The Regulation of Statelessness in International

Law 162 (1989).


conventions speak predominately to discriminatory dena-

tionalization (i.e. taking away one's nationality), and not to

the issue at hand in the instant case, that of negative

denationalization (i.e. preventing a person from being without a

nationality). Furthermore, the low number of signatories to

these conventions, i.e., the 1954 Convention was only signed by 6

nations, and the fact that the I.C.J. has never ruled in favor of

obligating a state to provide aliens with an effective

nationality, shows that any such concept has not yet ripened into

the use and opinio juris necessary to amount to a rule of

customary international law.32

Since there is no applicable treaty or customary

international on point obligating a state to act affirmatively to

prevent a person's de-nationalization, Balboa's decision not to

provide the refugees with a definite nationality is a choice cor-

rectly made within the parameters of that state's domestic law

and policy. As such, Balboa is clearly and unequivocally not

under any duty to ensure that the individuals possess an

effective nationality. Freedonia's claim must therefore be

dismissed.

Ill. BALBOA IS UNDER NO OBLIGATION BY TREATY OR CUSTOMARYINTERNATIONAL LAW TO EXTEND REFUGEE STATUS TO THE PANKHURSTSOR LABORIANS.

A. BALBOA HAS EXCLUSIVE JURISDICTION OVER THE REFUGEES ASA FUNCTION OF ITS INHERENT SOVEREIGNTY

There is no treaty, international custom, or general

32 Weis, at 9.


principle of international law obligating Balboa to grant refugee

status to the Pankhursts or to the Laborians. By denying refugee

status to the Pankhursts and to the Laborians, Balboa is merely

performing a function of its inherent right of sovereignty.

Sovereign nations possesses an inherent right to conduct

their internal affairs without being subjected to the

jurisdiction of any foreign entity. The United Nations Charter

recognizes that states are exclusively competent with respect to

all internal affairs . All states share an equality, as

reflected in Article 2(1) of the U.N. Charter acknowledging "the

sovereign equality of all members.'' Thus, foreign entities do

not possess the authority to subject Balboa to their jurisdiction

absent a clear intent by Balboa to be so subjected.

Further, Article 2(7) of the United Nations Charter

prohibits U.N. intervention "in matters which are essentially

within the domestic jurisdiction of any state.''35 Since Balboa

is a member of the United Nations with sovereignty equal to that

of every other nation within the United Nations, Balboa's

jurisdiction within its own territory is both prima facie plenary

and not subject to the jurisdiction of any other state.36

A presumption of full sovereignty of a state over its

33 J. Crawford, The Creation of States in International Law, 32(1979).

34 United Nations Charter, June 26, 1945, 59 Stat. 1031, Art. 2,paragraph 1 (hereinafter United Nations Charter).

35 United Nations Charter, Art. 2, paragraph 7.

36 Crawford, at 32.


territory exists, unless a rule of international law or custom

provides unequivocal proof that a restriction on state

sovereignty exists.37 The Permanent Court of International

Justice (PCIJ) in Lotus38 clearly established that the burden of

proof rests on the party who claims that the territorial

sovereignty of a state has been restricted.

The PCIJ held in Lotus that since France could not show any

customary rules of international law restricting Turkey from

exercising jurisdiction over a Turkish and a French ship involved

in an accident on high seas, Turkey had not violated

international law by exercising its jurisdiction. Further, Lotus

stated that restrictions upon the independence of states could

not be presumed. Later, the International Court of Justice

confirmed the Lotus principles in the RiQht of Passage Case3 9.

Thus, Balboan actions within its borders are merely a permissible

expression of its inherent sovereignty absent a clearly

established international law to the contrary. Further, under

international norms, Freedonia clearly has the burden of proof to

show an international rule limiting Balboa's exercise of state

sovereignty.

B. BALBOA IS NOT OBLIGATED BY ANY TREATY TO EXTEND REFUGEESTATUS TO THE PANKHURSTS OR LABORIANS

37 I. Detter De Lupis, International Law and the Independent

State, 23 (2d ed. 1987).

38 The S.S. "Lotus" (Fr. v. Turk.), 1927 P.C.I.J. (ser. A)

No. 10.

39 Right of Passage Case (Portugal v. India), 1960 I.C.J. 6.

13


State action is a function of inherent sovereignty.

International law merely defines the limits to which a state may

exercise its jurisdiction. International courts have

consistently held that the conclusion of treaties is the exercise

of state sovereignty, not a limitation of it. Hence, any law or

treaty which effectively binds Balboa would only have a limited

confining effect and would not be a general limitation over

Balboa's inherent sovereignty.

Balboa and Freedonia are both signatories to the Vienna

Convention on the Law of Treaties40 and are expressly bound by

its terms. However, states not signatory to a treaty cannot be

bound by that particular treaty's terms as Article 34 of the

Vienna Convention states, "[a] treaty does not create...

obligations.., for a third State without its consent.'41

Because Balboa is not a signatory to the 1951 Geneva Convention

on Refugees42 or to the 1967 Protocol Relating to the Status of

Refugees43, no term in either document is binding upon Balboa.

C. BALBOA IS NOT OBLIGATED TO EXTEND REFUGEE STATUS TO THEPANKHURSTS OR LABORIANS SINCE THEY ARE NOT REFUGEESUNDER CUSTOMARY INTERNATIONAL LAW.

40 Vienna Convention on the Law of Treaties, U.N. Doc. A/CONF.39/27 (1969), 63 A.J.I.L. 875 (1969), 8 I.L.M. 679 (1969)(hereinafter Vienna Convention).

41 Vienna Convention, Art. 34.

42 United Nations Convention Relating to the Status of Refugees,July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 137 [hereinafter citedas Refugee Convention].

43 United Nations Protocol Relating to the Status of Refugees,January 31, 1967, 606 U.N.T.S. 267, 6 I.L.M. 78 (1967) (hereinafterRefugee Protocol).


1. Balboa has the right to make any determination whether

to grant asylum under customary international law.

International custom recognizes the sovereignty of each

nation in the area of refugees. Under customary international

law it is the sovereign right of every state to decide whether or

not a foreigner shall be admitted into its territory.44 The

general practice of the host state unilaterally determining

refugee status, coupled with the universal attitude of oping

juris, qualifies this principle as customary international law.

Article 38(l)(b) of the Statute of the International Court

of Justice defines customary international law as "international

custom, as evidence of general practice accepted as law."'4 5

Customary international law has been explained as "a general

recognition among States of a certain practice as obligatory, '46

and as "the generalization of the practice of States."'47

Components weighed in determining whether a practice constitutes

customary international law include a common and widespread

practice among many states48, and whether states have accepted

44 L. Horborn, The IRO, its History and Work 1946-1952 313-14(1956).

5 Statute of the International Court of Justice, 1983 U.N.Y.B.

1334, entered into force on 24 Oct. 1945, art. 38, para. 1(b).

46 J.L. Brierly, The Law of Nations, an Introduction to theInternational Law of Peace 61 (6th ed. 1963).47 Judge Read in Fisheries Case (U.K. v. Nor.), 1951 I.C.J. 116,

191.

48 M. Villiger, Customary International Law and Treaties, p. 13(1985). See also, L. Henkin, R. Pugh, 0. Schachter & H. Smit,International Law: Cases and Materials 37 (1987), (Customary lawexists with the presence of "two distinct elements (1) General

15


the principle as law, or opino juris.

Customary international law views the granting of asylum as

a right of the state.49 Further, the 1967 United Nations

General Assembly's Declaration on Territorial Asylum recognizes

this principle.50 Article (3) of the Declaration on Territorial

Asylum provides for "the State granting asylum to evaluate the

grounds for the grant of asylum. '51 While United Nations

Declarations do not carry the weight of direct, binding law on

their own,5 2 when reflecting international custom, Declarations

possess a binding character.53 Thus, the ultimate determination

of refugee status remains with Balboa under customary

international law.

2. Exercising its right of determination, Balboa hasconcluded that the Pankhursts and the Laboriansare not refugees under customary internationallaw.

practice and (2) its acceptance as law.")

49 J.N. Saxena, Problems of Refugees in the Developing Countriesand the need for International Burden Sharing, in International Lawin Transition, editors R.S. Pathak and R.P. Dhokalia, p. 95, 99(1949).

-50 United Nations General Assembly Declaration on TerritorialAsylum, December 14, 1967, G.A. Res. 2312 (XXII), GAOR Supp. (No.16) 81, U.N. Doc. A/6716 (1968), [hereinafter Declaration onTerritorial Asylum].

51 id., Art. 1(3).

52 G. Goodwin-Gill, The Refugee in International Law 76, 77(1983).

53 L. Sohn, A Short History of the United Nations Documents onHuman Rights, in Commission to Study the Organization of Peace,18th Report, The United Nations and Human Rights 39, 68-70 (1968).

16


A refugee is a recognized person in the international legal

community as several international instruments have defined the

term refugee. Balboa is under no obligation to recognize any

particular definition. In addition, the definition of a refugee

is imprecise outside of international treaties and state

practices.

The refugee definition is vague since treaties over the last

half century have defined the refugee differently. The Refugee

Convention and the Refugee Protocol have defined the term refugee

as one who "has been considered a refugee under (previous

particular international agreements) or the Constitution of

International Refugee Organization." 4 Additionally, under

Chapter I, Article 1(A) (2) a person could be a refugee if:

As a result of events occurring before 1 January 1951 andowing to well-founded fear of being persecuted for reasonsof... political opinion, [he] is outside the country of hisnationality and is unable or, owing to such fear, isunwilling to avail himself of the protection of thatcountry.

55

The Refugee Protocol merely extended the Refugee Convention as

Article I (1) of the Protocol stated Othe term 'refugee' shall...

mean any person within the definition of article 1 of the

Convention as if the words 'As a result of events occurring

before 1 January 1951 and'.., were omitted.o5 6

The definition of refugee used in the Refugee Convention and

54 Refugee Convention, Article 1 (A)(1).


s6 Refugee Protocol, Article I (1).

17


Protocol has also been adopted in several regional

instruments.57 Balboa is not a signatory to and is thus not

bound to any term in either the Refugee Convention or Protocol.

While not a signatory to the Refugee Convention or Protocol,

Balboa recognizes that the definition of the refugee contained in

Chapter I, Article I(A)(2) of the Refugee Convention is a

reflection of a general principle of international law. The

Refugee Convention is a codification of previous attempts by the

international community to define the term refugee. However,

Balboa under customary international law has the sole right of

determination whether any party applying for refugee status

qualifies as a refugee.

Under the Article 1(A)(2) of the Refugee Convention any

party attempting to qualify for refugee status must be unwilling

to avail himself of the protection of his country of origin due

to a well founded fear of being persecuted for reasons of

political opinion.58 State interpretation of the "well-founded

fear" criterion plays a large role in the determination of

refugee status.59 Wide disparities exist between state

interpretations of the "well-founded fear" criterion,60 ranging

57 See Article 1 of the 1969 Organization of African UnityConvention on Refugee Status, done at Addid Ababa on Sept. 10,1969, U.N.T.S. no. 14,691, and Article 1 of the 1980 EuropeanAgreement on Transfer of Responsibility for Refugees.


59 T. Cox, Criterion of Refugee Status, 10 Brooklyn J. Int'l L.

333, 353 (1984).

60 id.


from states with liberal interpretations to several states which

have virtually closed themselves off to all refugees.61 State

interpretation of this criterion is not subject to a review

process either by customary international law or within the

Refugee Convention.

As the sole determiner of the refugee status of the

Pankhursts, Balboa has concluded that a well founded fear of

Draconian persecution based upon Hillary's political opinion does

not exist. Balboa has determined that insufficient evidence has

been presented to establish a well founded causal relationship

between Hillary's fear of potential Draconian persecution and her

political opinions.

Hillary's vocal opposition to Draconia's political views

never changed between her living in Draconia and her visiting

Balboa. Any complaint that Hillary's expressed opinion of

Draconian policies led to Draconian police searching her home is

purely speculation. The Refugee Convention does not consider,

nor does Balboa accept mere speculation to be equal to that of

the "well-founded fear" required to extend refugee status to an

applicant.

Since Balboa has not been provided sufficient evidence to8

establish any link, including the required well founded link

between Hillary's political views and Draconia's search of

Hillary's home, Balboa is under no obligation to extend refugee

61 id. at 354. (States with restrictive interpretations include

Japan, Switzerland, Denmark, and Thailand.)

19


status to Hillary. Accordingly, Balboa has merely exercised its

sovereign right by denying refugee status to Hillary.

Fear of persecution due to violations of an exit visa's

terms does not qualify a person for refugee status under general

principles of international law. In order for a state to be

obligated to extend refugee status, applicants must show they are

unwilling to return to their country of origin because of a well

founded fear of persecution based upon reasons associated with

the Refugee Convention. Thus, Balboa is under no obligation to

extend refugee status to Hillary and by denying refugee status is

merely exercising a function of its inherent sovereignty.

Neither Rousseau nor Emily qualify for refugee status under

customary international law. Further, Balboa is not under any

obligation to extend refugee status to either one. Neither

Rousseau nor Emily have not presented evidence of a well founded

fear based on any of the requisite factors found in Article 1

(A)(2) of the Refugee Convention. Thus, no international custom

or law exists obligating Balboa to extend refugee status to

either one.

Humanitarian refugees under customary international law do

not create obligations upon states to extend refugee status.

For an international custom to be treated as law, there must be

universal practice and treatment of the custom as if it were law.

States have been reluctant to enter into legally binding


obligations to admit large numbers of refugees.62 Faced with

situations involving large-scale influx of aliens, states have

felt free to determine whether and under what conditions to

extend refuge. 3 Since the Laborians do not qualify as refugees

under Article 1 of the Refugee Convention and no customary

international law exists which obligates Balboa to extend refugee

status, Balboa is free to make any determination of refugee

status involving the Laborians.

Balboa has no obligation under customary international law

to return the Pankhursts or the Laborians to any country other

than that from which they originated. Since international

tribunals have determined that unless the country challenging the

sovereignty of another can present a customary international

preventing a state action, the host state may exercise its

sovereignty as it sees fit.M

IV. BALBOA HAS NO OBLIGATIONS UNDER PRINCIPLES OF NON-REFOULEMENT BECAUSE BALBOA HAS NOT CONSENTED TO BE BOUND TONON-REFOULEMENT BY TREATY, NOR IS NON-REFOULEMENT CUSTOMARYINTERNATIONAL LAW.

A. BALBOA HAS NOT CONSENTED TO BE OBLIGATED BY TREATY TOTHE PRINCIPLES OF NON-REFOULEMENT.

Only two international instruments deal explicitly with non-

62 K. Hailbronner, Nonrefoulement and "Humanitarian" Refuqees:Customary International Law or Wishful Legal Thinking?, in The NewAsylum Seekers: Refugee Law in the 1980,s: the Ninth SokolColloquim on International Law 123, 129 (1988).

3 id. at 133.

See the S.S. "Lotus", supra note 6.

21


refoulement, the Refugee Convention and the Refugee Protocol.65

Balboa is not a signatory to and is not bound by any term under

either treaty. Further, since the two articles in the refugee

instruments relevant to the question of non-refoulement do not

apply to either the Pankhurst's nor the Laborian's situations,

special treatment cannot be extended to either group.

B. NON-REFOULEMENT DOES NOT CREATE ANY OBLIGATION UPONBALBOA BECAUSE THE INTERNATIONAL COMMUNITY DOES NOTACCEPT ITS PRINCIPLES AS CUSTOMARY INTERNATIONAL LAW.

Non-refoulement is not customary international law as state

practice concerning non-refoulement has been very erratic6.

States have neither consistently practiced a particular

definition of non-refoulement67 nor have they accepted its

principles as law. 8 Thus, Balboa is under no obligation to

follow its principles.

C. EVEN IF NON-REFOULEMENT IS CONSIDERED CUSTOMARYINTERNATIONAL LAW, BALBOA'S ACTIONS ARE LEGAL SINCENEITHER THE PANKHURSTS NOR LABORIANS ARE REFUGEES ASREQUIRED BY NON-REFOULEMENT PRINCIPLES.

Non-refoulement principles have traditionally appeared in

-65 S. Martin, Non-Refoulement of Refugees: United States

Compliance with International Obligations 23 Harv. Int'l L.J. 357(1983).

6 R. Newmark, Non Refoulement Run Afoul: The OuestionableLegality of Extraterritorial Repatriation Programs, 71 Wash. Univ.L.Q. 833, 845 (1993).

67 id. at 860.

6 Hailbronner, at 129. (Almost all states of Eastern Europe,Asia and the near .east have consistently refused to ratifyagreements containing non-refoulement clauses.)

22


state practices involving refugees.69 The Refugee Convention and

Protocol are the only two international documents involving

refugees that address the idea of non-refoulement.70 Article 33

of the Refugee Convention, as adopted by the Refugee Protocol,

recognizes that:

No Contracting State shall expel or return ('refouler') arefugee at the frontiers of territories. 71

Thus, any application of non-refoulement principles require that

a refugee is involved. Because the Pankhursts and Laborians are

neither Article 1 refugees nor recognized by Balboa as refugees,

non-refoulement is not applicable to their situations.

V. BALBOA HAS FULFILLED ITS OBLIGATIONS UNDER THE CONVENTION ONTHE RIGHTS OF THE CHILD BECAUSE BALBOA UNDER ITS RIGHT OFSOVEREIGNTY HAS DETERMINED THAT IT IS IN THE BEST INTERESTSOF THE CHILDREN TO BE PLACED IN BALBOAN POSTER HOMES.

Balboa has fulfilled its treaty obligations as a signatory

to the Convention on the Rights of the Child.1 2 Balboa has

determined that placing the children into Balboan foster homes

was in their best interests, thus complying with Balboa's

obligations under the Convention.

The Convention on the Rights of the Child has as primary

goals to provide for a child's basic needs while keeping in mind

69 Goodwin-Gill, at 69-72.

70 see Martin, supra note 29.

71 Refugee Convention, Art. 33.

72 United Nation Convention on the Rights of the Child, signed

Nov. 20, 1989, entered into force Sept. 2, 1990, G.A. Res. 44/25(1989).


her best interests. Article 3(1) states, "[i]n all actions

concerning children.., the best interests of the child shall be a

primary consideration."" While Article 6(2) requires that,

uStates Parties shall ensure to the maximum extent possible the

survival and development of the child. o7 4 Balboa has determined

that if the children were to remain in the refugee hotels their

nutritional development and basic chances for survival would be

hindered, contrary to Articles 3(1) and 6(2).

The host country has the authority to place children in

foster homes when the child's needs are not being provided for in

specific situations. The state, under Article 9(1) shall:

... ensure that a .child shall not be separated from hisor her parents against their will, except whencompetent authorities.. determine., that suchseparation is necessary for the best interests of thechild. Such determination may be necessary in aparticular case.. where the parents are livingseparately and a decision must be made as to thechild's place of residence.75

Article 20(1) grants the state authority to provide protection as

it states: "[a] child temporarily or permanently deprived of his

or her family environment, or in whose own best interests cannot

be allowed to remain in that environment, shall be entitled to

special protection and assistance provided by the State."76

Further, once the state has determined that it will provide

73 id., Art. 3(l).

74 id., Art. 6(2).

75 id., Art. 9(1).

76 id., Art. 20(1).


protection and care for a child it may place the child in foster

care, as Article 20(3) states in part, "Such care could

include.., foster placement."7 Since the parents are living

separately and because Balbda has determined that it is not in

the children's best interests to be at the hotel, Balboa meets

its Article 9 and 20 obligations to provide for the children's

best interests by placing them in Balboan foster homes.

Also, signatory states are under no obligation to ensure

that the child's ethnic, religious, cultural and linguistic

background is held continuous when placed in the foster home.

Article 20(3) requires that: "When considering solutions, due

regard shall be paid to the desirability of continuity in a

child's upbringing and to the child's ethnic, religious, cultural

and linguistic background.""8 While the article requires the

state to give regard to the child's background when deciding

placement, the article does not create obligations upon the State

by mandating continuity. By placing the children in Balboan

speaking foster homes, Balboa does conform to Article 20(3).

VI. CONCLUSION

For the foregoing reasons, the government of Balboa

respectfully requests this Honorable Court to (1) declare that

this court does not possess jurisdiction over these matters, and

(2) deny Freedonia's claim that Balboa's treatment of the

refugees does not conform to customary international law.

7 id., Art. 20(3).

78 id.
